U.S. Department of Justice

Office of Justice Programs

National Institute of Justice

National Institute of Justice

Research Report

DEPARTMENT OF JUSTICE

OFF ICE OF JUSTICE PROGRAMS

BJA NI J OJJDP BJS OVC

“Broken Windows” and

Police Discretion
U.S. Department of Justice

Office of Justice Programs

810 Seventh Street N.W.

Washington, DC 20531

Janet Reno

Attorney General

Raymond C. Fisher

Associate Attorney General

Laurie Robinson

Assistant Attorney General

Noël Brennan

Deputy Assistant Attorney General

Jeremy Travis

Director, National Institute of Justice

Office of Justice Programs National Institute of Justice

World Wide Web Site World Wide Web Site

http://www.ojp.usdoj.gov http://www.ojp.usdoj.gov/nij
“Broken Windows” and

Police Discretion

George L. Kelling

Professor, School of Criminal Justice, Rutgers University

Research Fellow, John F. Kennedy School of Government, Harvard University

Senior Fellow, Manhattan Institute

October 1999

NCJ 178259
Jeremy Travis

Director

Steve Edwards

Program Monitor

This program was supported under award number 95–IJ–CX–0013 to George L. Kelling by the National

Institute of Justice, Office of Justice Programs, U.S. Department of Justice. Findings and conclusions of

the research reported here are those of the author and do not necessarily reflect the official position or

policies of the U.S. Department of Justice.

The National Institute of Justice is a component of the Office of Justice Programs, which also includes the

Bureau of Justice Assistance, the Bureau of Justice Statistics, the Office of Juvenile Justice and Delinquency

Prevention, and the Office for Victims of Crime.
iii

Foreword

The past two decades have seen growing awareness of the complexity of police work, an examination of the use of discretion in officers’

daily policing activities, and a better understanding of the critical role community leaders

play in the vitality of neighborhoods.

Noted criminologist George L. Kelling has

been involved in practical police work since

the 1970s, working day-to-day with officers in

numerous agencies in all parts of the country

and serving as an adviser to communities, large

and small, looking for better ways to integrate

police work into the lives of their citizens.

In the context of the “broken windows” metaphor, proposed by James Q. Wilson and Dr.

Kelling in 1982 in The Atlantic Monthly, this

Research Report details how an officer’s

sensitive role in order maintenance and crime

prevention extends far beyond just arresting

lawbreakers—how discretion exists at every

level of the police organization. Historically,

police have asserted authority in many ways,

often having nothing to do with arrest. Dr.

Kelling takes a special interest in the use of

discretion to exercise the core police authority,

enforcement of the law.

He wants to understand better why officers

make arrests in some circumstances and not

others, especially when they are dealing with

the more mundane aspects of policing—such

as handling alcoholics and panhandlers and

resolving disputes between neighbors. And he

notes that police officers themselves are often

unable to articulate the precise characteristics

of an event that led them to act as they did.

Kelling maintains that officers must and should

exercise discretion in such situations. But giving police officers permission to use their professional judgment is not the same as endorsing

random or arbitrary policing. In his view, policing that reflects a neighborhood’s values and

sense of justice and that understands residents’

concerns is more likely to do justice than policing that strictly follows a rule book.

Police work is in transition within communities. The police are more frequently involved

in creating and nurturing partnerships with

community residents, businesses, faith-based

organizations, schools, and neighborhood associations. Their role in the justice process requires even greater commitment to developing

policy guidelines that set standards, shape the

inevitable use of discretion, and support community involvement. We hope this Research

Report will help inform the continuing debate

over the proper exercise of police discretion in

this new era of policing.

Jeremy Travis

Director

National Institute of Justice
v

Preface

thinking. Police culture and the profession

have changed dramatically as a result.

Nevertheless, discussions about substantive

police work continue to lag. We now understand that telling officers only what they cannot do, which is so typical of police manuals

and rules and regulations, has not improved

the quality of policing. We know as well that

the work world of police is too complex to tell

officers exactly what they should do in every

circumstance. The only alternative left for the

management of most police work is to teach

officers how to think about what they should

do, do it, and then talk about it, so that they

improve their practice over time and share

their emerging values, knowledge, and skills

with their colleagues and the profession.

This report proposes a model for helping

police officers think about their work while

practicing it.

During the late 1960s and early 1970s, Frank

Remington, Herman Goldstein, and others advanced the notion that police departments are

comparable to administrative agencies whose

complex work is characterized by considerable

use of discretion. Moreover, they advocated

the development of guidelines to shape police

use of discretion. Their thinking and work

were ahead of their time; the field of policing

was simply not ready to consider seriously the

implications of this view. Policing was still

mired in the simplistic and narrow view of law

enforcement agencies as concerned primarily

with felonies—the front end of a criminal processing system.

Today, the ideas regarding the complexity of

police work and the ubiquity of discretion that

are inherent in research conducted about police functioning during the 1950s through the

1970s have permeated police and academic
vii

Contents

Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A Short History of Police Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

The Urgency of Influencing Police Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Preventive Interventionist Policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Reopened Issues for Policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Police, Law, and the Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

What Is the Future of Guidelines Development? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

The Discovery of Discretion and Its Meaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Survey of Criminal Justice Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Study Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

The Police Guidelines Movement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Development of Police Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Recognizing the Complexity of Police Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Acknowledging Police Use of Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Recognizing and Confirming How Police Work Is Conducted . . . . . . . . . . . . . . . . . . . . . . . . 38

Advancing Values . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Putting Police Knowledge Forward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Undergoing Development by Practicing Police Officers and Citizens . . . . . . . . . . . . . . . . . . 41

Undergoing Clear and Broad Public Promulgation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Emphasizing Police Adherence to a Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Establishing Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Receiving Recognition as an Ongoing Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Appendix A: Order Maintenance Training Bulletin 96–1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Appendix B: San Diego Police Department Policy Statement . . . . . . . . . . . . . . . . . . . . . . . . 53
1

Introduction

Police departments throughout the United States,

as well as in Canada, England, and elsewhere in

Europe, have begun to reemphasize the maintenance of public order as an essential aspect of

police work. Police activities to restore public

order in New York City and its subway system,

for instance, have received extensive publicity

and professional attention. So, too, has the

“broken windows” metaphor as it has been

closely linked to New York City.1

The New York story, as well as others, raises

serious questions. To what extent is order maintenance linked to the current decline of crime

in the United States? Regardless of its efficacy,

how proper is assertive police order maintenance? To what extent can police brutality be explained by “turning the police loose” with order

maintenance tactics? Many civil libertarians and

advocates for the homeless, for example, oppose

order maintenance because they believe it infringes on the liberties of selected populations

(the poor, minorities, the homeless, and youths)

and opens the door to abusive police practices.2

The debates about these issues have been vigorous and often rancorous.3

It is not the intent of this report to debate these

issues or even dwell on them at any length. I

have addressed them elsewhere and will do so

again in the future.4 It is important, however,

to note up front that order maintenance has the

potential for abuse. Vagrancy and loitering laws,

for example, have been used to deny minorities

their rights and to abuse citizens, especially

African-Americans. But my concern here is not

limited to order maintenance activities; the concern here is how to manage properly what Egon

Bittner calls literal police work.5

Past and current police administrators have attempted to shape police work through the development of command and control organizations,

recruitment, training, supervision, rules and

regulations, rewards and punishment, specialization, and routinized tactics like preventive patrol

and rapid response to calls for service. Certainly,

these efforts to control officers have powerfully

influenced how American society is policed.

Rationalized police organizations deploy wellequipped officers throughout their jurisdictions

in an organized fashion that allows them to respond to calls for service quickly. The old image

of policing on which the “Keystone Cops” were

based belongs to another age. Nevertheless, putting officers on the streets in a timely and organized fashion and getting them to particular

locations rapidly is quite different from shaping

police behavior once officers are out in the community dealing with citizens’ problems, needs,

and conflicts.

Police administrations’ limited ability to shape

police street practice persists despite management’s preoccupation with control—an orientation that largely grew out of efforts to minimize

the kinds of corruption, especially political corruption, that plagued late 19th and early 20th

century American policing.6

 Yet, as valid as its

origins were, police administrators’ preoccupation with control, and the methods they adopted

to maintain it, have had tragic, unanticipated

consequences. Most obviously, this preoccupation has fostered a bitterly antimanagement culture in many police departments. In this culture

officers are alienated from the citizens they

serve, support a “stay out of trouble” (by doing

nothing) mentality, and, while disapproving

of abuse and corruption, nonetheless protect

deviant officers in the name of occupational

solidarity.7
2

James Q. Wilson noted some of the consequences of rules and regulations on officers’

beliefs in 1968:

But there are at least two limits to the value of

negative policies [things officers may not do].

First, they leave untouched a large area of

necessary discretion and, second, they are

perceived as irrelevant and unhelpful restrictions—as rules that “tell us what we shouldn’t

do” and thus “give the brass plenty of rope

with which to hang us,” but that “don’t tell us

what we should do.”8

These beliefs—that rules tell officers only what

not to do, will be used to “hang” officers, and

fail to tell police what they should do in a

positive way—have arisen in part from police

administrators’ inattention to the substantive

content of day-to-day policing.

At least three explanations can be given for this

inattention:

● Oversimplified, but robust, views of police

work have dominated police conventional

wisdom for most of this century. The idea of

police as “crime fighters,” or merely “law

enforcement officers,” was the cornerstone of

an ideological view of police that dismissed,

ignored, or was oblivious to actual police

functioning.

● Many police chiefs who have been forthright

about police work find that legislators, mayors, and other officials often do not want to

hear that police officials, not to mention patrol

officers, are involved in policy decisions about

how problems should be managed.9

 This is

partially because the general public or public

officials simply do not understand the complexity of many problems.

● Politicians and media representatives often are

so caught up in the simple-minded slogans of

“wars on crime,” the “thin blue line,” and so

forth, that they are not prepared (whether intentionally or not) to hear about the real world

of policing.

Some chiefs have demanded or implied that

when confronted with difficult or ambiguous

problems, line police should “do what has to

be done and cover your ass.” While often not

explicit, this message is nonetheless sent to

officers because they are frequently put into

complex and troublesome situations where citizen demands for action are high and departmental thinking about such situations is nonexistent.

Although this defensive mentality does not characterize all police leadership, over time it has

characterized enough leaders in enough departments so that line officers have come to support

or tolerate a bitter antimanagement culture.10

Pushing harder and more stridently with current

control mechanisms that exert little real control

over substantive work will not lead the way out

of this quandary. Such specious thinking has

been in place since the 1950s (e.g., just a little

more inservice training, a slightly tighter span of

control, a few more general orders or rules, more

militant internal affairs units, improved rewards

and punishments, improved or more representative recruitment, greater militarization of recruit

training). Instead, police officials need to focus

on the substantive content of police work; find

and delineate the means to conduct police work

morally, legally, skillfully, and effectively; then

structure and administer departments on the

basis of this literal work and not a fictionalized

view of police work. In other words, a clear

definition and description of quality policing is

needed around which appropriate organizations

and administrations can be developed.

Concentrating on the substance of police work is

nothing new; Herman Goldstein, Egon Bittner, the

late Frank Remington, and others have advocated

such a focus for decades. Today, the issue has

acquired a new urgency.

Although this report raises the broader issues of

discretion in all police work, it focuses primarily

on the more mundane aspects of policing, such as

resolving petty conflicts, assisting and protecting

children, managing drunks and the emotionally
3

disturbed—those activities that fill patrol officers’

occupational lives. In addition, 11 principles to be

considered in developing and implementing police

guidelines are explored:

● Recognizing the complexity of police work.

● Acknowledging police use of discretion.

● Recognizing and confirming how police work

is conducted.

● Advancing values.

● Putting police knowledge forward.

● Undergoing development by practicing police

officers and citizens.

● Undergoing clear and broad public

promulgation.

● Prescribing what officers may not do.

● Emphasizing police adherence to a process.

● Establishing accountability.

● Receiving recognition as an ongoing process.

Moreover, this report takes a special interest in

selective enforcement: helping officers articulate

in professionally sound terms why they properly

make arrests in some circumstances (in the case of

public urination, for example) but not in others.

Notes

1. Wilson, James Q., and George L. Kelling,

“Broken Windows: The Police and Neighborhood Safety,” The Atlantic Monthly (March

1982): 29–38; also see Kelling, George L., and

Catherine M. Coles, Fixing Broken Windows:

Restoring Order and Reducing Crime in Our

Communities, New York: Free Press, 1996.

2. Generally, civil libertarian groups, such as the

New York City Civil Liberties Union, make both

arguments. Former San Jose Police Chief Joseph

McNamara has been the most outspoken advocate of the points of view claiming that assertive

police order maintenance tactics open the door

to abusive police practices. McNamara argues

that former New York City Police Commissioner

William Bratton has a “flippant” attitude toward

abuses such as those perpetrated by police

against Abner Louima (a Haitian immigrant) in

New York City, and that James Q. Wilson and I

“opened the door” to such abuses in the original

“Broken Windows” article. (See McNamara,

Joseph, “Brutality in the Name of Public Safety,”

Los Angeles Times, August 24, 1997, A1.)

3. At another level, the equation made in some

quarters between police order maintenance activities (“broken windows”) and “zero tolerance”

for disorderly behavior raises issues that go beyond semantics. Without further comment, it is

an equation that I have never made, find worrisome, and have argued against, considering the

phrase “zero tolerance” not credible and smacking of zealotry.

4. Kelling and Coles, Fixing Broken Windows,

Chapters 2, 4, and 5.

5. Bittner, Egon, Aspects of Police Work, Boston:

Northeastern University Press, 1990: 4.

6. This does not imply that there were not other

reasons for police managers’ concerns for control. Military organizations predisposed police

toward command and control issues, and the inherent decentralization that goes with patrolling

requires that considerable effort be put into

establishing control mechanisms.

7. For an interesting discussion of these issues,

especially as a result of the Knapp Commission

in New York City, see Anechiarico, Frank, and

James B. Jacobs, The Pursuit of Absolute Integrity: How Corruption Control Makes Government Ineffective, Chicago: University of Chicago

Press, 1996.

8. Wilson, James Q., Varieties of Police Behavior, Cambridge, MA: Harvard University Press,

1968: 279.

9. Goldstein, Herman, “Categorizing and Structuring Discretion,” Policing a Free Society,

Cambridge, MA: Ballinger Publishing Company, 1977: 93–130.
4

10.It is not unusual for police executives to

blame unions for this antimanagement culture,

but this is self-serving and deceptive because

this thinking pervades many nonunionized

departments and existed long before unions

entered the police scene during the 1960s. See,

for example, Kelling, George L., and Robert

Kliesmet, “Police Unions, Police Culture, the

Friday Crab Club, and Police Abuse of Force,”

in And Justice for All: Understanding and Controlling Police Abuse of Force, ed. William A.

Geller and Hans Toch, Washington, DC: Police

Executive Research Forum, 1995: 187–204.
5

A Short History of Police Accountability

Police accountability is an issue that has been

with democracies since modern police were

created. Citizens should be concerned about

controlling police: they have immense authority;

they are armed and authorized to use force;

and unlike the military, they are not sequestered

on bases—they are spread throughout the

community.

Modern American policing had its origins in

England, where, in 1829, the questions of

whether to create a police force and, if created,

how to keep this force accountable were debated

by political, social, and philosophical elites for

more than a century. Everything about policing

was “on the table” in this debate—the relationship of police to political authority, activities

that would constitute the business of policing,

organizational structure and administrative processes, and the means by which police would

obtain their goals.

During the late 18th and early 19th centuries, the

English stared across the channel at the French,

or continental, model of policing, which relied

upon secret police and paid informers. Likewise,

the English already had developed a model of

policing Ireland and their other colonies with

armed mounted police operating in groups

bivouacked to avoid contact with the native

population.1

The English decided neither of these models was

acceptable. Early English policing emphasized

uniformed, unarmed, highly recognizable officers who were diffused geographically throughout London and patrolled on foot. These officers

not only were granted authority from the Crown

but also had to earn the citizens’ trust. Investigations conducted by plainclothes police, at least

initially, were rejected; victims pursued criminal

investigations through some form of stipendiary

police. Unobtrusive policing by public investigators risked police meddling in political matters,

and militarized policing risked further alienation

of the general population. The primary business

of police was to prevent crime through presence,

persuasion, and reduced opportunities.

In the United States, cities adopted the English

model of policing. Although not originally outfitted in uniforms—this was deemed European

elitism—American police were similarly diffused throughout cities, like their English counterparts, to prevent crime. For American police,

the issue of who would control the police—

urban political bosses or descendants of the

original Dutch and English settlers—was the

dominant public concern. This struggle to control police forces was to shape American police

in remarkable ways.

During the first stage of evolutionary development (roughly from the 1850s to the 1920s),

police were largely under the control of urban

political machines; during the second stage

(roughly the 1930s to the 1970s), police, with

the support of the progressives, evolved into

virtually autonomous urban agencies. Herman

Goldstein has described police as evolving into

the least accountable branch of urban government during this era.2

To achieve this shift—from politically dominated and controlled to virtually autonomous

forces—practically every aspect of American

policing was reformed during the early decades

of the 20th century. Leading police thinkers (like

O.W. Wilson, Leonard Fuld, and Bruce Smith)

were overwhelmingly preoccupied with issues

of control—that is, both wresting control of

police at all levels from political influences and
6

ensuring that only “professional” police influence police. Bruce Smith, for example, wrote

in 1929: “Without exceptions, all proposals for

improvement of organization and control have

necessarily been aimed at the weakening or the

elimination of political influences.”3

In the name of eliminating corrupt political influences from policing, these men attempted to

change the nature of the business from crime

prevention to reactive law enforcement. They

restructured police organizations, revised administrative processes, developed new tactics, and

redefined the relationship between police and

citizens—each, more or less successfully—all

with an eye toward gaining administrative control of police, whether field commanders, supervisors, or patrol officers.4

By the 1950s, theorists wrote about the conduct

of police work—services line officers perform

in the course of their daily work—as being semiautomatic (i.e., police responses to incidents

could be, or should be, so controlled as to be

analogous to typing, piano playing, or rote adherence to a script). O.W. Wilson wrote in 1956,

for example:

Administration has been defined as the art

of getting things done. Police objectives are

achieved by policemen at the level of performance where the patrolman or detective deals

face-to-face with the public—the complainants, suspects, and offenders—and the success

of the department is judged by the performance of these officers.

Decisions that are advantageous to the department are most likely to be made by policemen

who have been selected in a manner to assure

superior ability, who understand the police

objectives and are sympathetic to them, who

are loyal to their department and capable of

operating effectively, efficiently, and semiautomatically (i.e., with a minimum of conscious self-direction, as in performance by a

skilled typist or pianist), and who have high

morale (i.e., the condition described by

military leaders as the right heart). (Emphasis

added.)5

Police work, in this view, as Egon Bittner once

said, could be conducted by persons who have

“the ‘manly virtues’ of honesty, loyalty, aggressiveness, and visceral courage.”6

 The idea of

officers thinking before they acted was to be

discouraged. They were to follow rules loyally.

The perception of police work as simple and

under administrative control was shattered, of

course, by research conducted in the 1950s by

the American Bar Foundation, which showed

that police work is complex, that police use

enormous discretion, that discretion is at the

core of police functioning, and that police use

criminal law to sort out myriad problems. The

research suggested that the control mechanisms

that pervaded police organizations—especially

rules and regulations, oversight, and militaristic

structure and training—were incompatible with

the problems that confront police officers daily

and the realities of how police services are delivered. Aside from several who were scholars,

few police administrators realized how “out of

touch” existing practices were with day-to-day

police realities.

Paradoxically, a policing strategy that was overwhelmingly preoccupied with control, in the

final analysis, failed to meet its most essential

criteria. True, the strategy largely eliminated corrupt political influences in police departments.

However, it left officers mostly to their own

devices in conducting the bulk of their work.

This state of affairs has not gone unnoticed in

either the legal or research community. The U.S.

Supreme Court, for example, grew impatient

with the unwillingness or inability of police

executives to control criminal investigations—

it was widely acknowledged since the 1930s

Wickersham Commission that police procedure

embraced the practice of torture—and through a

series of decisions during the 1960s (the exclusionary rule, the requirement that offenders understand their right to an attorney, and so forth),
7

established guidelines that shaped the future

conduct of criminal investigations.7

 Egon

Bittner, based on his own research of police

handling of drunkenness and mental illness, has

written both eloquently and indignantly about

the mismatch between “official” and real police

work:

The official definition of the police mandate

is that of a law enforcement agency. . . . The

internal organization and division of labor

within departments reflect categories of crime

control. Recognition for meritorious performance is given for feats of valor and ingenuity

in crime fighting. But the day-to-day work of

most officers has very little to do with all of

this. These officers are engaged in what is

now commonly called peacekeeping and order

maintenance, activities in which arrests are

extremely rare. Those arrests that do occur

are for the most part peacekeeping expedients

rather than measures of law enforcement of

the sort employed against thieves, rapists, or

perpetrators of other major crimes.

For the rich variety of services of every kind,

involving all sorts of emergencies, abatements

of nuisances, dispute settlements, and an almost infinite range of repairs on the flow of

life in modern society, the police neither receive nor claim credit. Nor is there any recognition of the fact that many of these human

and social problems are quite complex, serious, and important, and that dealing with

them requires skill, prudence, judgment, and

knowledge.8

Notes

1. Tobias, John J., “The British Colonial Police:

An Alternative Police Style,” in Pioneers in

Policing, ed. Philip John Stead, Montclair, NJ:

Patterson Smith, 1977: 241–261.

2. Goldstein, Herman, “Categorizing and Structuring Discretion,” Policing a Free Society,

Cambridge, MA: Ballinger Publishing Company, 1977: 93–130.

3. Smith, Bruce, “Municipal Police Administration,” The Annals 146 (November 1929): 27.

4. Kelling, George L., and Mark H. Moore, “The

Evolving Strategy of Policing,” in Perspectives

on Policing, No. 4, Cambridge, MA: U.S. Department of Justice and Program in Criminal

Justice Policy and Management, John F.

Kennedy School of Government, Harvard

University, November 1988.

5. Wilson, O.W., “Basic Police Policies,” The

Police Chief (November 1956): 28–29.

6. Bittner, Egon, Aspects of Police Work, Boston:

Northeastern University Press, 1990: 6–7.

7. The Wickersham Commission was the first

national survey of criminal justice and police

practices.

8. Bittner, Aspects of Police Work.
9

The Urgency of Influencing Police Work

Increasingly, police are under renewed and constant pressure from neighborhood groups and

city halls across the country—not to mention

State legislatures and the U.S. Congress—to “do

something now” about eliminating the excesses

of the drug market, getting guns off the street,

and regaining control over public places.1 Attempting to meet such demands has inevitable

strategic consequences for police departments

and local government. The main consequence is

that police strategy shifts from a reactive and inherently passive model to a preventive interventionist model that reopens policy issues about

police handling of the homeless, drunks, drug

dealers and users, the emotionally disturbed, and

minor offenders that many believed had been

addressed once and for all during the period following the 1960s. This strategic change takes

police to the edge, or even over the edge, of

How New Haven Developed Guidelines

New Haven’s policy guidelines embody important principles described in this report. The

guidelines focused on problems of disorder and were developed with officers and sergeants at

the request of then Chief Nick Pastore.

The guidelines have been distributed as a training bulletin in the New Haven Department of

Police Service. (See Appendix A, “Order Maintenance Training Bulletin 96–1.”) The bulletin

was prepared as a city- and departmentwide document, rather than as a location-specific document. Consequently, it invites and outlines a problem-solving method to deal with location- or

other problem-specific issues as they may occur in neighborhoods.

Of course, the value of guidelines depends on the skill of management in linking them to ongoing police practice and administrative and supervisory procedures. Moreover, the examples

of guidelines included in this report are clearly not as good as they could be—none were

developed as part of a special “project” to develop guidelines. Likewise, the 11 points articulated elsewhere in this report are no doubt preliminary and inadequate. The art of developing

guidelines has yet to be defined and will emerge only over time. Yet, guidelines are essential

to the development of police accountability and professionalism.

constitutional law—at least as it has been interpreted for the past 30 years.

Preventive Interventionist Policing

When a shooting occurs in New Haven, Connecticut, the Department of Police Services

immediately sends a team of Yale Child Study

Center clinicians and police officers to help

children and families cope with the social and

psychological consequences of violence.2

 (See

“How New Haven Developed Guidelines.”)

Likewise, when Community Patrol Officer Jack

Fee, who is assigned to the Academy Homes

in Boston, Massachusetts, discovers a hitherto

unenforced housing law that allows the court

to sentence a gang member with a history of

violence, but no convictions, to a 1-year jail

sentence for trespassing, this is preventive interventionist policing.
10

Although it might not appear so, preventive policing that interrupts cycles of violence through

problem solving is much more invasive of community life than the reform—or 911—model that

has dominated policing in the United States since

the 1950s. This inherent assertiveness can lead to

serious misunderstandings of what constitutes

community or problem-oriented policing.

For many people, thanks in part to how it has

been presented by many police leaders, community policing is viewed as “soft” policing comparable to community relations or, worse yet, social

work. When asked to describe his efforts in

Academy Homes, Officer Jack Fee—known

throughout the Boston Police Department as a

“tough” cop—shrugged and said, half apologetically, “I suppose I’m doing social work.” This

perspective, that preventive policing is soft policing, has created numerous obstacles for departments attempting to get police rank and file to

embrace community policing.

“Crime fighting” is inherently passive and reactive policing: patrol in a powerful car, receive a

911 call, turn on flashing lights and siren, speed

to the incident, tend to it as quickly as possible,

and return to service. For the most part, this

method of policing is in response to citizeninitiated calls to deal with incidents.3

Community policing is inherently proactive: scan

for problems; diagnose them; try to prevent them

from occurring again; if they recur, try to limit the

damage and restore the victim/family/community’s

functioning.4 This is implicit in New Haven’s approach—tend to the incident, of course, but follow

up with action that limits the damage and helps

children and families restore themselves to adequate functioning. Even police handling of murder

should go beyond criminal investigation.

This failure to understand the inherent assertiveness of community or problem-oriented

policing, and equating it with soft policing, has

greater consequences than just alienating line

police officers. The equation of “community”

and “soft” leads to public confusion when tough

police action is required to deal with severe

crime or disorder problems. New York City

provides the best current example.

Critics have attacked New York Police Department (NYPD) community policing efforts since

former Commissioner William Bratton implemented assertive and enterprising (do not read

combative here) policing to deal with disorder

and crime.5

 Indeed, a major Los Angeles Times

article in 1995 argued that the NYPD was

remilitarizing and transforming itself into what

the Los Angeles Police Department (LAPD)

was, while the LAPD was attempting to demilitarize itself and become the “officer-friendlies

that the NYPD once symbolized.”6

 The ease

with which the article made this argument points

to the danger of using military metaphors, as

was done by NYPD officials, to describe

policing.

The Los Angeles Times reporter wrote: “In Los

Angeles, officers are trying to shed the very

image that the NYPD covets [military]. Cops

are getting out of cars, walking beats, putting on

shorts and riding bicycles, all to be closer to the

public.”7 The reporter, who chose to focus on the

military metaphors used to describe the NYPD

anticrime problem-solving methods, ignored the

fact that the NYPD cops were in reality doing

all of these things—probably at a rate faster than

any other police department in the country.

The reporter’s view of community policing as

soft is evident throughout the story. For example: “Los Angeles police are being encouraged to spend more time talking to residents and

merchants about what troubles their lives, to emphasize community contacts over arrests, to consider the underlying community pressures that

give rise to crime rather than focusing exclusively on criminal behavior itself.”8

 Most advocates of community policing could say, or have

said, similar words. It does not follow, however,

that if police officers talk to citizens and come to

understand “what troubles their lives” this is the

end of their responsibility; they are still police.
11

This debate about New York City, if anything, has

become even more heated in recent years. Mayor

Rudolph Giuliani and current Police Commissioner Howard Safir are favorite targets of those

who view assertive policing as “turning the police

loose.” To be sure, incidents like Louima and

Diallo warrant public concern; however, the idea

that such events, as tragic as they were, are inevitable consequences of restoring order ignores

both the benefits of the current police strategy and

the reality that such incidents are not limited to

recent history.9

 Outrageous brutality and tragic accidents occurred during the post-Knapp era, when

“staying out of trouble” became the NYPD’s

dominant ethos as well.10

The fact that police add options to their repertoire of methods, try to limit damage, and restore

functioning does not mean that conventional assertive law enforcement is disallowed as a legitimate police tactic. For example, understanding

the dynamics of New York City’s “squeegee

men”—unwanted car window washers who intimidate drivers into giving them money—and

talking to them did nothing to deter their behavior. Careful and judicious use of law enforcement did: policing that included citations,

warrant service, arrest, and jailing ultimately

were required to solve the problem.11

The growing practice of police using civil law to

achieve criminal law objectives shows just how

enterprising community and problem-solving

policing can be. These tactical innovations, civil

remedies such as Boston Police Department

Officer Jack Fee applied, include efforts to deal

with domestic violence, drug trafficking, racial

harassment, disorderly behavior, and weapons

possession. Civil remedies include injunctions,

restitution, forfeiture, and civil fines that can be

used either alone or in tandem with criminal law,

as in the case of use of property forfeitures to

deal with drug dealing. Civil initiatives not only

add to the police inventory of authority to deal

with problems but also, as Mary M. Cheh has

noted: “[C]ivil remedies offer speedy solutions

that are unencumbered by the rigorous constitutional protections associated with criminal trials,

such as proof beyond a reasonable doubt, trial

by jury, and appointment of counsel.”12 This is

hardly soft policing. In fact, civil initiatives raise

important strategic, legal, and constitutional

issues about use of police authority.13

The misrepresentation of community policing

as soft plays into the hands of those who are opposed to change in policing methods. Those who

want to get back to “tough” law enforcement—

police riding around in cars, responding to 911

calls, and occasionally conducting order maintenance “sweeps” (another terrible metaphor to

describe what police do)—trivialize what has

happened in New York City. Moreover, when

successful assertive policing is misconstrued as

combative or militarized policing, it becomes

fodder for those who want to “turn the police

loose.”

Citizens, politicians, and vested interest groups

have always pressured police to cut legal and

constitutional corners—that is, “to do what has

to be done.” Whether the corner cutting is illegal

searches, manhandling suspects, or “testilying,”

the consequence is always the same: a police

culture that is alienated from democratic values

and the public and that tolerates police abuse of

citizens and police corruption.14

Reopened Issues for Policing

During the 1960s, policing in the United States

was profoundly affected by converging social,

political, and professional and occupational

forces. These forces included the triumph of progressivism as a model for local government and

the installation of preventive patrol and rapid response as conceived by O.W. Wilson and other

police reformers as the model of effective, efficient, and honest policing. At the same time, the

rights revolution had a major impact on society’s

response to mental illness, drunkenness, vagrancy, and disorderly behavior. These social

forces also created the “criminal justice system”

with the police as its front end and a criminal
12

justice educational establishment that promulgated the ideas inherent in the “system.”15

The 1960s shaped a surprisingly congruent police strategy that, while not adhered to universally, nonetheless constituted the official strategy

of progressive midcentury American police.

Policing became synonymous with law enforcement in which police should be out—or should

get out—of the business of dealing with emotionally disturbed individuals, youths, and the

problems of drunkenness, disorderly behavior,

and minor offenses.

In this respect, an unwitting alliance was struck

between police and civil libertarians. For many

civil libertarians, the police always implicitly

threaten the use of authoritative power. In this

libertarian view, juvenile crime, mental illness,

drunkenness, and disorder should be the sole

province of social workers and advocates. If

anybody should intervene, it certainly should

not be the police. For police, relief from these

responsibilities seemingly bailed them out of

inherently ambiguous and sticky areas that had

gotten them into trouble in the past. Police recognized the social control opportunities that policing disorder and drunkenness provided, yet

they were inherently “messy” businesses both

literally and metaphorically: literally because

drunks are often unkempt, dirty, and unpleasant

to manage; metaphorically because considerable

societal ambiguity exists about how to deal with

such problems.

Narrowing the focus to serious crime simplified

life considerably for police. “Crime fighting”

was easy to portray to the public and provided

an occupational vision around which officers

could rally. The demand for order that grew in

cities during the 1980s and early 1990s, however, thrust police back into the middle of the social, legal, moral, and constitutional issues they

had tried to avoid. The publication of “Broken

Windows” first popularized the link between

disorder and fear and hypothesized the links

among disorder, fear, crime, and urban decay

that gave voice and legitimacy to citizen demands that order be restored.16 Later work by

Wesley Skogan confirmed these linkages and

provided even greater momentum to the move to

restore order.17

By the early and mid-1990s, highly publicized

programs to restore order by New York City’s

Transit Police Department in that city’s subway

system and the NYPD in public spaces generally, in San Francisco’s “Operation Matrix,” and

in other cities once again put the police in the

middle of the growing public debate about how

to handle disorder.18 Policy and strategy issues

once thought resolved again became issues for

police. What was the proper balance between

individual rights and community interests?

Questions arose both within and outside police

ranks about the proper police role in handling

juveniles, drunks, the homeless, and disorderly

citizens:

● Is “zero tolerance” an apt phrase to describe

police order maintenance? What does it

mean?

● Do police have a role to play in crime prevention by working with youths as other than law

enforcement officers?

● Given the lack of resources, what is the

proper police role in dealing with drunks and

the emotionally disturbed?

● What are the bases of authority for police to

handle disorderly persons?

● Are new sources of authority for dealing with

problems available, and how are they best

developed and deployed?

● What new forms of training are required to

prepare police for working with troubled

youths and adults?

● What do community collaboration, cooperation, and accountability really mean in an

operational sense?
13

● How are police kept from protecting narrow,

parochial interests—such as keeping “strangers” out of neighborhoods and communities?

● How do police refrain from doing what citizens should do for themselves or from usurping the roles of private or other governmental

agencies?

These issues, many of which were once regarded as resolved in many police circles, demand

careful and thoughtful consideration. The reinvention of policing profoundly challenges

contemporary police leaders, policymakers,

scholars, and academics to consider new methods of active political and community control

of police discretion and the development of

new police guidelines.19

Police, Law, and the Constitution

A lieutenant in a moderately large police department recently described the activities of a

special antiviolence unit he headed that concentrated on confiscating guns from youths. The

lieutenant was bright, capable, and intimately

familiar with Lawrence Sherman’s research on

gun confiscation in Kansas City and the New

York City efforts to reduce gun carrying.20 In the

middle of the conversation about gun confiscation, the lieutenant acknowledged somewhat

ruefully, “We’re really pushing the Fourth

Amendment here.” I asked him, “What special

policy guidelines did the department provide to

officers to ensure that they acted appropriately,

at least by departmental standards?” My question was prompted by my work in New York

City with the Transit (subway), Metro North

(Grand Central Terminal), and Long Island Railroad (Penn Station) police departments. I had

helped the departments develop policies and

tactics to deal with disorderly behavior that had

taken them to the edge of the law as well. Indeed, Robert Kiley, chairman of the Metropolitan Transportation Authority, and I understood

very well that we would be going to court as

soon as those policies and tactics were implemented.21 From the beginning of our activities,

we prepared for the legal, constitutional, and

moral battles that would be forthcoming when

we challenged existing practices and traditions.

The lieutenant’s response, however, confirmed

that although the department’s gun strategy

deliberately brought it to the verge of illegality,

neither the department nor the unit had developed, or had considered developing, an explicit

policy statement about its antigun tactics that

would communicate its policies to the public

and guide and control either the unit’s—or its

officers’—field practices. In all likelihood, the

department’s rules and regulations specified that

officers would always operate legally and contained the routine homage to the Fourth Amendment and the law regarding search and seizure.

Moreover, it is impossible to write a policy statement that covers every issue that officers would

confront, and it would be unwise to try. The

former concern, the impossibility of writing

an effective policy statement, reflects a widely

shared belief in policing—and certainly not a

capricious belief—that practical circumstances

are so complicated that every exigency cannot be

covered in a policy statement. Regarding the latter concern—that it would be unwise to try—this

reflects what is often viewed as true in policing:

some things the police do that take them to the

edge of the law have the potential to be so controversial that they are best left unmentioned and

up to the discretion of officers.

My concern about the lieutenant’s statement was

also driven by my observations of patrol practices

during the early 1980s in four police departments

that were known to confiscate large numbers of

guns. The great majority of guns were confiscated

through “traffic enforcement” at all four sites. In

the large midwestern city where I spent the most

time observing, police (routinely in two-person

patrol cars) would stop cars of “interest,” almost

invariably legitimately, on the basis of some traffic violation or faulty equipment. A car of interest

always contained one or more male youths. All of

the youths were African-American, but nearly

everyone in this area of the city was AfricanAmerican except for some police.
14

In conversations with officers, I learned that they

did not stop cars carrying women because a

woman could not be searched unless a female

police officer was present. More often than not,

no female officer was on site, meaning one had

to be called in from elsewhere in the city—a

process that consumed too much time. Likewise,

the officers did not stop cars driven by males

over the age of 30 because “even if they were

carrying, they probably wouldn’t hurt anyone

except in self-defense,” according to one officer.

Once a car was stopped, typically, one officer

approached the vehicle and asked the driver to

step out. The other officer stood either in back

of the car or on the passenger side. As the driver

stepped out of the car, the officer asked for a

driver’s license and for the man to step to the

rear of the car to be sure that they were out of

traffic. The officer then indicated the basis for

the stop—generally something like “you were

over the center line” or “your left tail light is

out.” After some exchange, the officer would

ask: “You wouldn’t mind if my partner checked

your trunk, would you?” Again, almost invariably, the driver acquiesced. And so it progressed—the next request was to check inside

the car. (If passengers were in the car, they were

asked to get out and join the officer and driver at

the back of the car.) Depending on the circumstances, the driver and passengers would be

“patted down.”

What I observed, of course, was a street game,

the rules of which almost everyone understood.

The traffic offense was legitimate and worthy of

a ticket. Each party was negotiating: the citizen

to get out of a ticket and the officer to search

the car. The request to search the trunk was the

opening gambit in the negotiation, and if the

driver refused, the officer, depending upon his or

her assessment of suspicious behavior, personal

safety, or some other justification, could have insisted on a search. A refusal, however, probably

clinched the ticket. It cannot be overemphasized,

however, how politely and respectfully officers

in this city managed these interactions. It was

clear from their behavior, as well as from their

communications with me, that the officers

wanted to avoid conflict.

In observing such transactions, one could not

help but be impressed by the skill, courtesy,

and reasonableness of most of the officers.

They were dealing with a serious problem, gun

carrying, and behaved in an exemplary fashion.

Nevertheless, it is unclear just how voluntary

most of the searches I had observed really were.

These were really pretext stops. In essence,

the police established a quid pro quo: you let

me search your car, and I let you out of a ticket.

Moreover, I observed officers who interpreted a

refusal to allow their search as a threat to their

safety that justified a search. While such transactions or subsequent interpretations may not have

occurred in Indianapolis or Kansas City during

the research there, I am reasonably certain that

the lieutenant mentioned above was referring to

practices not dissimilar to those I had observed

in the early 1980s when he discussed “pushing

the Fourth Amendment.”22

The point here is not to judge whether the officers I observed were justified in what they were

doing—clearly, their performance was in line

with common practice in the department. My

concerns, unrelated as they are to squeamishness

about pushing the law, have to do with the failure of police departments to develop clear policy

statements regarding some of the serious and

complex issues they encounter. (See “Democracy, Policing, and Discretion.”)

Defining quality police work, recognizing it,

and managing it are internal police matters and

should be pursued to improve policing.23 That

good policymaking reduces litigation is an added

benefit of competence.

The current demands placed on police and the

strategic consequences of responding to them in

new and innovative ways underscore the inherent complexity of good police work and the pervasive role discretion plays in policing. The issues described above—the inherent assertiveness
15

of the new models of policing, the individual

rights versus community interests issue, and the

legal and constitutional issues that are raised by

new police tactics—provide further evidence of

just how complex policing is.

While the complexity of police work and the

discretion required in policing may be widely

acknowledged, the impact of this awareness on

police practice and administration is not clearly

distinguishable. Arguably, attempts to control

and shape police behavior are still largely mired

Democracy, Policing, and Discretion

Although police discretion cannot be structured by simply proscribing certain actions or issuing policy statements, departments that fail to develop clear policy guidelines about complex

issues face several serious concerns:

● Cutting moral, legal, and constitutional corners, regardless of the high-minded purposes for

doing so, creates and perpetuates the morally ambiguous nature of police work in its literal

sense—that which line police officers do.a One of the primary consequences of such moral

ambiguity is an isolated police culture and its “blue curtain.”

● Regardless of the skill and grace of officers in “doing what has to be done,” cutting corners

sends improper messages to citizens about how problems should be solved. Both those involved with officers in the quid pro quo and those who demand that police “do what has to

be done”—whether citizens or politicians—are given a terrible and dangerous message about

policing a democratic society.

● When failing to wrestle with the complex moral and legal issues of social policies, departments risk litigation, the outcome of which can seriously jeopardize current and future departmental efforts to deal with serious problems. The U.S. Supreme Court’s inquiry into

criminal investigation was the result of poor police practices and, more important in this context, management’s failure to rein in and control detectives. In fact, police departments and

cities throughout the United States are currently under serious legal assault from organizations such as the New York and American Civil Liberties Unions and other libertarian and

advocacy groups.b

● Most problems can be solved, or at least managed, once they are properly understood and a

range of alternative solutions has been explored. Perhaps the best example is graffiti in New

York City’s subway system. Once thought insoluble, the problem yielded to creative and

thorough work. This does not mean it was completely eradicated—New York’s graffiti artists

are a dedicated lot—but it is a problem that, with vigilant maintenance of subway cars, can

be managed and kept to a minimum.

Notes

a. Bittner, Egon, Aspects of Police Work, Boston: Northeastern University Press, 1990: 4. Also

see Kelling, George L., “How to Run a Police Department,” City Journal 5 (4) (Autumn

1995): 34–45.

b. Kelling, George L., and Catherine M. Coles, Fixing Broken Windows: Restoring Order and

Reducing Crime in Our Communities, New York: Free Press, 1996: 38–69.
16

in the organizational and control apparatus that

characterized the far simpler, mid-20th century

view of policing: command and control, quasimilitary training, factorylike models of supervision, and extensive rules and regulations. These

control mechanisms, which are irrelevant to

street policing, are based on the Taylor model

that has dominated organizational thinking for

most of the 20th century.24

During my work with the New York City Transit

Police Department, in subsequent work with

other police departments, and in reviews of departmental rules and regulations, general orders,

and other policy materials, I was struck by the

departments’ virtual silence about actual police

work. A review of numerous departmental written materials showed that the majority dealt with

internal administrative issues. A significantly

smaller number addressed “hot” issues: use of

force, hot pursuit, lineup, and arrest procedures.25

Frank Vandall, Professor of Law at Emory

University, made a similar observation about

training materials in 1976: “An examination of

contemporary police training materials reveals

that they fail to deal with the concept of discretion in law enforcement. They use such vague

phrases as ‘proper action,’ ‘necessary action,’

and ‘cool thinking’ to gloss over the common

discretionary problems involved in dealing with

discretionary situations.”26

To give another example, I was asked recently to

review an eastern State’s recruit training materials

considered by many to represent state-of-the-art

training for community policing. One of the first

sections I checked was “Traffic Stops.” After an

introduction that included pieties stating that the

purpose of traffic stops was not to give tickets but,

rather, to educate citizens about traffic safety, the

section outlined, in great detail, how to make a

traffic stop. Properly, the section communicated

considerable concern about officer safety. (Indeed, it dwelled on the subject to such an extent

that I could not help but infer that the purpose of

traffic stops was to keep officers safe.) But that is

all there was. Not one word—and I checked other

sections that dealt with similar issues—was given

to advise students about how they should use their

discretion to give or not to give tickets. Yet, the

only discretionary police acts that the majority of

citizens will experience or observe will involve

traffic violations.

My own personal experience with a traffic stop

is instructive here. On the New Hampshire Expressway, I was stopped going 72 miles per hour

when the limit was still 55. When the officer

approached me, he made the typical request for

my license and registration but asked me as well:

“Was there any reason why you were going 72

miles per hour?” It was a question. There was

nothing sarcastic, confrontational, or entrapping

about it. I said: “No, I was just smelling the barn

and eager to get home. I have no excuse.” He

replied: “I just can’t give you 17 miles over the

limit—7, sure. Maybe 10. But not 17.” I understood and told him so. He wrote the ticket for

64, which was 9 over the limit. I didn’t like getting the ticket, but I had no sense of injustice or

anger. His opening question, which I heard as a

sincere request for information about whether

I had some justification for speeding, acknowledged his discretionary authority and acknowledged, as well, that I might have had a good

reason, and he was prepared to consider it. The

respect with which the officer treated me engendered my respect for him.

The gaps in police training and guideline development that are so typical, however, retard the

development of police knowledge, impede the

development of genuine professionalism, diminish the quality of police services, invite the use

of personal whim as the basis for discretionary

judgments, and unnecessarily expose police officers and departments to liability suits. Such circumstances are not unique to American policing.

Joanna Shapland and Jon Vagg identify similar

circumstances in England:

[S]enior officers did not regard area beat work as

a specialism within uniformed work or even as a

particularly skilled task, in the way that they saw

IRV [immediate response vehicles] and public
17

order work. Special training, meetings on good

practice, and manuals of relevant skills were

conspicuously absent—in contrast to the position in many other areas of police work. ABOs

[area beat officers] were thrown on their own resources and were often supervised by sergeants

who had joined the force at the time when patrols in panda cars [small cars used by patrol officers] were being introduced. These sergeants

had now to learn what area beat policing was

about at the same time as their constables were

finding out how to do it. The result was ironic.

The police themselves had precious little to

draw on as a model other than television images

of Dixon of Dock Green [a previously popular

English television show about police].27

The issue here is the state of the art of guidelines,

policies, rules and regulations, and training materials and not necessarily how police actually

work. I continue to walk, ride in patrol cars, and

ride bicycles with officers. The skill, sensitivity,

and capability of many police officers—such as

I have described above and have experienced

throughout my career in police research—is

striking. (I have seen terrible policing as well.)

Two points stand out. First, police are almost

uniformly unable to articulate what they do, why

they do it, and how they do it. Most, when queried, resort to the jargon of the field: “common

sense,” “proper action,” and so forth. Second,

virtually all of their order maintenance, peacekeeping, and conflict resolution activities are unofficial. Except for personal notes officers take

down, no records are kept of these activities. It

is only a slight exaggeration to say that the only

way that the activities can become official is if

someone files a complaint against the officer.28

There are signs of hope. In some cities, police

managers go beyond paying mere lip service to

complexity and discretion and find alternative

models of training, supervision, and control that reflect the realities of how police work is carried out.

The San Diego Police Department’s policy statement on undocumented persons, for example,

provides sophisticated guidelines about a very

complex issue confronting police departments in

cities near national borders—the extent to which

local police should look for violations of national

immigration laws. (See Appendix B, “San Diego

Police Department Policy Statement.”) This problem could easily have been left to officer “discretion,” that is, to ignore it administratively and let

officers “work it out” in the field. Instead, the department thought through its values, mission, and

functions and elaborated a policy that put public

safety and harmony above aggressive attempts to

ferret out undocumented aliens.

What Is the Future of Guidelines

Development?

The shifts in policing now under way cannot

occur unless police departments are reorganized

to manage literal police work. This is why many

community policing programs often fail to meet

their stated goals. For most police departments,

organizational and administrative “business as

usual” is still the rule. Most police departments

have developed few materials about the day-today problems that confront and, at times, plague

patrol officers.

Moreover, a body of police management literature is being developed that reflects more realistically the way police work is carried out.29

Issues such as the role accountability of midlevel

managers, supervision in a highly decentralized

organization, and leadership have been brought

to the center of police attention. One such experiment that has received enormous publicity

is the interactive control mechanism called

COMPSTAT that William Bratton borrowed

from the private sector and adapted for NYPD

midlevel managers (precinct commanders).30

The method, first described by Robert Simon

of the Harvard Business School, combines management, supervisory, and peer control into a

highly visible process that rivets the midlevel

manager’s attention on precinct problems.31 As

exciting and promising as this innovation is,
18

however, it is still unclear whether such methods

will be adapted to line police or how departments can develop guidelines to shape line

officers’ discretion—the most widespread and

invisible discretion in criminal justice.

Despite the complexity of police work, generic

sets of guidelines about the substantive problems

with which police deal—for example, disorderly

behavior in a downtown area—can be developed. Such guidelines can serve as the basis for

police training, supervision, and practice; identify competent police work and provide the basis

for officer accountability; help to articulate a

genuinely professional police point of view;

and, yes, even be used to defend police actions

in litigation.

Notes

1. For a discussion of “doing something, now,”

see Bittner, Egon, The Functions of Police in

Modern Society, Cambridge, MA: Oelgeschlager,

Gunn and Hain, 1980.

2. Marans, Steven, and Jean Adnopoz, The

Police-Mental Health Partnership: A Community-Based Response to Urban Violence, New

Haven, CT: Yale University Press, 1995.

3. For the best summary of this research, see

Mary Ann Wycoff, “The Role of Municipal

Police Research as a Prelude for Changing It,”

Mimeograph, Washington, DC: Police Foundation, 1982.

4. Goldstein, Herman, Problem-Oriented Policing, Philadelphia, PA: Temple University Press,

1990.

5. Many have questioned whether Bratton was

really an advocate of community policing. See

Kelling, George L., and Catherine M. Coles,

Fixing Broken Windows: Restoring Order and

Reducing Crime in Our Communities, New

York: Free Press, 1996. Also see Bratton,

William W., and Peter Knobler, Turnaround:

How America’s Top Cop Reversed the Crime

Epidemic, New York: Random House, 1998.

6. Newton, Jim, “Police: New York Police Claim

Their New Militarism Has Led to the City’s

Startling Drop in Crime,” Los Angeles Times,

December 24, 1995, A1.

7. Ibid.

8. Ibid.

9. The Louima incident involved the torture of

a Haitian immigrant by New York City police

officers—a truly ugly episode. In the Diallo

incident, 4 officers fired 41 shots and killed an

unarmed African man.

10. The Knapp Commission was a 1972 investigation of corruption in the New York City Police

Department that many believe led to a departmental preoccupation with police corruption and

abuse.

11. Kelling and Coles, Fixing Broken Windows,

141–143.

12. Cheh, Mary M., “Constitutional Limits on

Using Civil Remedies to Achieve Criminal Law

Objectives: Understanding and Transcending the

Criminal-Civil Law Distinction,” The Hastings

Law Journal 42 (July 1991): 1325–1413.

13. For a discussion of civil initiatives, see Cheh,

“Constitutional Limits.”

14. “Testilying” refers to systematic police lying

during court testimony.

15. See Kelling and Coles, Fixing Broken

Windows, especially Chapter 3.

16. Wilson, James Q., and George L. Kelling,

“Broken Windows: The Police and Neighborhood Safety,” The Atlantic Monthly (March

1982): 29–38.
19

17. Skogan, Wesley, Disorder and Decline: Crime

and the Spiral of Decay in American Neighborhoods, New York: The Free Press, 1990.

18. “Operation Matrix” was a joint police/social

work effort to reduce disorder and deal with

homelessness, especially in parks.

19. Livingston, Debra, “Police Discretion and

the Quality of Life in Public Places: Courts,

Communities, and the New Policing,” Columbia

Law Review 97 (3) (April 1997): 551–672.

20. Sherman, Lawrence W., James W. Shaw, and

Dennis P. Rogan, The Kansas City Gun Experiment, Research in Brief, Washington, DC: U.S.

Department of Justice, National Institute of

Justice, January 1995, NCJ 150855.

21. For a detailed discussion of the legal issues

and how they were resolved, see Kelling and

Coles, Fixing Broken Windows, 38–69.

22. For a brief description of the gun confiscation program in Kansas City and an anecdote

from Indianapolis, see Sherman, Shaw, and

Rogan, The Kansas City Gun Experiment, 5–6.

23. Goldstein, Herman, “Confronting the Complexity of Police Functioning,” in Discretion in

Criminal Justice: The Tension Between Individualization and Uniformity, ed. Lloyd E. Ohlin and

Frank J. Remington, Albany, NY: State University of New York Press, 1993: 53; and Goldstein,

Herman, “Police Policy Formulation: A Proposal

for Improving Police Performance,” Michigan

Law Review 65 (April 1967): 1123.

24. Kelling, George L., and William J. Bratton,

“Implementing Community Policing: The Administrative Problem,” in Perspectives on Policing, No. 17, Cambridge, MA: U.S. Department of

Justice and Program in Criminal Justice Policy

and Management, John F. Kennedy School of

Government, Harvard University, July 1993.

25. Kelling and Coles, Fixing Broken Windows,

182–185.

26. Vandall, Frank, Police Training for Tough

Calls: Discretionary Situations (limited edition),

Atlanta, GA: Emory University, Center for

Research in Social Change, 1976.

27. Shapland, Joanna, and Jon Vagg, Policing By

the Public, London: Routledge, 1988.

28. Kelling, George L., “How to Run a Police

Department,” City Journal 5 (4) (Autumn 1995):

35–44.

29. See, for example, Sparrow, Malcolm K.,

Mark H. Moore, and David M. Kennedy, Beyond 911: A New Era for Policing, New York:

Basic Books, 1990.

30. Bratton and Knobler, Turnaround.

31. Simon, Robert, The Mental Health Practitioner and the Law: A Comprehensive Handbook, ed. Lawrence E. Lifson and Robert I.

Simon, Cambridge, MA: Harvard University

Press, 1998.
21

The Discovery of Discretion and Its Meaning

In 1965, Frank Remington wrote, “The police

should play a major role in fashioning and

implementing a proper law enforcement policy

for their community.”1 Remington drew an analogy between the Federal Trade Commission, an

administrative agency with the responsibility to

develop enforcement policy, and local police

departments, which have a similar responsibility.

This was a radical departure from past thinking

about policing. Legislatures and city councils

made laws, and the police responsibility was to

enforce them impartially. A generation of police

had been reared on the idea that law enforcement was what they did: individuals broke the

law, the police arrested them. The police job was

just that simple.

Implicit in Remington’s proposal was an alternative view of the police as a de facto administrative agency of city government whose work was

characterized by repeated use of discretionary

judgment. This discretion existed not only at executive levels but also at every level of the police

organization, especially with the practicing police officer. Remington’s views were based on

research he directed during the late 1950s, specifically the American Bar Foundation (ABF)

Survey of Criminal Justice.

Until the 1950s and 1960s, surveys of police and

criminal justice agencies relied on official reports and statistics.2

 Generally conducted on a

city level by local elites aided by professional

consultants like Bruce Smith, police surveys

studied the extent to which local police departments followed the reform model of policing,

especially their adherence to its organizational

and administrative principles. What police did—

their literal work—remained out of public view.

Survey of Criminal Justice Agencies

In 1953, Supreme Court Justice Robert H. Jackson, believing criminal justice to be in a state of

crisis, called for a major national study of criminal justice agencies by the American Bar Association (ABA). At first administered by the ABA

and funded by the Ford Foundation, the survey

also became the first project of the ABF, the

ABA’s newly created research arm. As first conceived, the study was designed to apply methodologies used in previous local surveys: official

data would be analyzed to learn the extent to

which agencies adhered to prescribed standards.

Not atypically, expert consultants devised the

original project and secured its funding. O.W.

Wilson, the dominant police theorist of the 20th

century, for example, compiled the checklist that

was to be the foundation for the study. Other

experts helped devise similar plans for examining other criminal justice agencies.3

 Herman

Goldstein, who was a staff member of the original survey, described the early plans:

If the ABF survey had followed its original

plan for that portion of its inquiry relating to

the police, it would not have added much to

the sparse knowledge then available. Like the

police field itself, the plan was heavily influenced by the prevailing perception of what

was important in policing—the technical and

administrative aspects of running a police

agency. The detailed agenda for inquiry identified 15 different categories of information

that were to be systematically acquired, with

all but two categories relating to the organization, administration, staffing, and equipping of

a police agency. The product would have been

an inventory of the degree to which the police
22

agencies conformed with the then-prevalent

standards for managing a police agency.4

Under the leadership of Remington and Lloyd

Ohlin (Emeritus Touroff-Glueck Professor of

Criminal Justice at Harvard Law School), however, the survey went in a different direction.

In some respects, the new direction was an outgrowth of a serendipitous mix of the University

of Wisconsin Law School’s “law in action”

tradition as embodied by Remington and the

Chicago School of Sociology’s tradition of field

observation as represented by Ohlin, a Ph.D.

from the University of Chicago.

Ohlin notes that Remington, the first staff director of the study, “decided from the outset that

the ABF survey would be different from earlier

studies, much less concerned with official summary statistics and more concerned with the

analysis of the criminal justice system in daily

operation.”5 In other words, the survey would

study law as it operated rather than law as it was

found in the books and, as a consequence, would

rely heavily on observational data of low-level

decisionmaking. Field staff filled out the checklists devised by the experts to be true to the

original proposal, but only for that purpose.6

Remington and Ohlin’s decision to reshape

the survey transformed it into one of the most

important social/legal research studies of the

20th century.

Initially, three sites were selected for the study:

Kansas, Michigan, and Wisconsin. Additional

sites were to be added later. After the survey

began in 1956, however, researchers, confronted

by the enormity of the study and the data set,

decided to limit their study to the original three

sites.

Study Findings

The study focused on the line personnel in

criminal justice agencies—police, prosecutors,

judges, and corrections officers—conducting

their routine work. Conventional thinking was

turned on its head:

● Discretion was found to be used at all levels

of criminal justice organizations. The idea

that police, for example, made arrest decisions

simply on the basis of whether or not a law

had been violated—as a generation of police

leaders had led the public to believe—was

simply an inaccurate portrayal of how police

worked.

● Low-level decisionmaking by line personnel

in light of practical and real-life considerations was found to be a significant contributor

to the crime control and problem-solving capacity of criminal justice agencies. This was

true not only for police but for prosecutorial

and other decisionmaking personnel as well.

● Criminal law was used to solve many social

problems, not just serious crimes.

● Behaviors designated as unlawful in criminal

codes, such as assault, were found to be extraordinarily diverse in nature and included

everything from private debt settlement and

spousal abuse to attacking strangers.

● The policies of each criminal justice agency

were found to have an impact on other criminal justice agencies.7

Given the pervasive use of discretion in daily police work, the most obvious question the survey

raised was why legal scholars, criminal justice

academics, and practitioners had failed to note

it in the past—why were these findings such a

surprise.8 The answer, of course, testified to the

power of reform ideology and its imagery. As

Samuel Walker notes:

The intriguing question, of course, is how 40

crime commissions, which involved the best

minds of their day—Felix Frankfurter and

Roscoe Pound, among others—could fail to

see such a crucial feature of the administration of justice. The answer is that phenomena

which are self-evident to one generation are

not necessarily evident to others. This highlights the role of paradigms in scientific

research. Paradigms describe observed phenomena, define problems, and guide research.
23

Phenomena that fall outside the prevailing

paradigm either are not noticed at all or are

dismissed as unimportant and not worthy of

investigation. So it was with discretion for

early crime commissions.9

Reflecting on these findings, Kenneth Culp

Davis, emphasizing the central role of police in

the justice process, estimated that about half of

the discretionary decisions made by criminal

justice agencies were made by police.10 He

added: “The police are among the most important policymakers of our entire society. And they

make far more discretionary determinations in

individual cases than any other class of administrators; I know of no close second.”11

Throughout the 1960s and 1970s, scholars, fascinated by how low-level, low-visibility discretion was used by patrol officers, studied police

functioning. Not surprisingly, study after study

confirmed the ABF findings: police work is

complicated, a small portion of police time is

spent on criminal matters, and police use discretion throughout their work.12

Consequently, some scholars and policymakers

began to study how to control or shape discretion. At this point, their thoughts began to diverge. Some researchers focused on the abuses

of authority that were reported in the survey’s

findings. A few advocated eliminating police

discretion altogether, at least in the decision to

arrest. Joseph Goldstein stated this point of view

most strongly:

The ultimate answer is that the police should

not be delegated discretion not to invoke the

criminal law. . . . [T]he police should operate

in an atmosphere which exhorts and commands them to invoke impartially all criminal

laws within the bounds of full enforcement. . . .

Responsibility for the enactment, amendment,

and repeal of the criminal laws will not, then,

be abandoned to the whim of each police

officer or department, but retained where it

belongs in a democracy—with elected representatives.13

Eliminating police discretion completely, even

in the decision not to arrest, has always been a

minority view. Goldstein’s view has been most

intensely debated as it pertains to domestic violence—a problem largely invisible to the public

prior to the ABF report. Prosecutorial discretion

in the handling of domestic violence was also

highlighted by early ABF reports.14 Since then,

discussion, debate, and policy regarding police

and prosecutorial handling of domestic violence

have changed directions several times. A review

of research on the impact of criminal justice

responses to domestic violence testifies, more

than anything, to the complexity of the problem

and the need for preventive problem-solving

approaches.15

Notes

1. Remington, Frank, J. “Police in a Democratic

Society,” Journal of Criminal Law, Criminology

and Police Science (1965): 361.

2. Leonard, V.A., Survey of the Seattle Police

Department, Seattle, WA, 1945.

3. Personal interview with Herman Goldstein,

Madison, WI, September 2, 1994.

4. Goldstein, Herman, “Confronting the Complexity of Police Functioning,” in Discretion in

Criminal Justice: The Tension Between Individualization and Uniformity, ed. Lloyd E. Ohlin and

Frank J. Remington, Albany, NY: State University of New York Press, 1993: 28.

5. Ohlin, Lloyd E., “Surveying Discretion by

Criminal Justice Decision Makers,” in Discretion in Criminal Justice: The Tension Between

Individualization and Uniformity, ed. Lloyd E.

Ohlin and Frank J. Remington, Albany, NY:

State University of New York Press, 1993: 6.

6. Personal conversations with Herman

Goldstein.

7. The findings were first used in Kelling,

George L., “Toward New Images of Policing:
24

Herman Goldstein’s Problem-Oriented Policing,” Law & Social Inquiry 17 (3) (Summer

1992): 545.

8. The final reports were published in five

books, all edited by Frank Remington and published by Little, Brown and Company (Boston,

MA): Lefave, Wayne, Arrest: The Decision to

Take a Suspect Into Custody (1965); Newman,

Donald J., Conviction: The Determination of

Guilt or Innocence without Trial (1966); Tiffany,

Lawrence P., Donald M. McIntyre, Jr., and

Daniel Rotenberg, Detection of Crime: Stopping

and Questioning, Search and Seizure, Encouragement and Entrapment (1967); Dawson, Robert O., Sentencing: The Decision as to the Type,

Length and Conditions of Sentence (1969); and

Miller, Frank W., Prosecution: The Decision to

Charge a Suspect with a Crime (1970).

9. Walker, Samuel, Taming the System: The

Control of Discretion in Criminal Justice, 1950–

1990, New York: Oxford University Press, 1992:

7–8.

10. Davis, Kenneth Culp, Discretionary Justice:

A Preliminary Inquiry, Baton Rouge, LA:

Louisiana State University Press, 1969: 166.

11. Ibid., 222.

12. Wycoff, Mary Ann, The Role of Municipal

Police Research as a Prelude to Changing It,

Washington, DC: Police Foundation, 1982.

13. Goldstein, Joseph, “Police Discretion Not to

Invoke the Criminal Process: Low-Visibility

Decisions in the Administration of Justice,” Yale

Law Journal 69 (4) (1960): 587.

14. Miller, Frank, Prosecution: The Decision to

Charge a Suspect with a Crime, ed. Frank J.

Remington, Boston: Little, Brown and Company, 1970.

15. For a summary of the thinking in the area of

domestic violence and an example of an individual author’s evolution in thinking, see Parnas,

Raymond I., “Criminal Justice Responses to

Domestic Violence Issues,” in Discretion in

Criminal Justice: The Tension Between Individualization and Uniformity, ed. Lloyd E. Ohlin and

Frank J. Remington, Albany, NY: State University of New York Press, 1993: 175–210.
25

The Police Guidelines Movement

Other scholars have seen police discretion in

terms that have differed from those of Joseph

Goldstein. Frank Remington, Herman Goldstein,

and James Q. Wilson, among others, were aware

of the possibilities of abuse but understood both

the inevitability of discretion and the inherent

opportunities for problem solving it offered police and other criminal justice agencies. Wilson,

for example, wrote in 1968: “The patrolman, in

the discharge of his most important duties, exercises discretion necessarily, owing in part to his

role in the management of conflict and in part to

his role in the suppression of crime.”1 The issue

was to eliminate unnecessary discretion and

enhance and shape necessary discretion.

During the mid-1960s, about the same time the

American Bar Foundation’s Survey of Criminal

Justice reports were first published, President

Lyndon Johnson created the Commission on

Law Enforcement and Administration of Justice,

his answer to Barry Goldwater’s challenges

about crime during the 1964 presidential race.

The Commission was set up to study crime and

society’s response to it. Its findings, as presented

in its report entitled The Challenge of Crime in a

Free Society, have shaped criminal justice thinking during the past 35 years.

How the findings in the ABF’s Survey on Criminal Justice and the Commission’s Challenge of

Crime in a Free Society support and contradict

each other is not at all clear. The history of this

era in criminal justice has not yet been written.2

Clearly the commission captured popular and

professional thinking and eclipsed the ABF’s

work—popularly, professionally, and sadly, it

should be noted, academically.

One reason why the ABF’s survey did not receive the recognition it deserved was because it

examined an enormous amount of data and first

began presenting survey data in 1965, approximately 9 years after the initial work began

(1956) and almost simultaneously with the work

and publications of the President’s Commission

(1967). (The five volumes of the survey were

published between 1965 and 1970.)

The ABF’s survey and the President’s Commission came to be linked in a number of ways.

Lloyd Ohlin, one of the survey leaders, became

an associate director of the Commission’s staff.

Both Frank Remington and Herman Goldstein,

also survey leaders, consulted with Commission

staff and its director James Vorenberg. Ideas first

raised in the survey found their way into the

Commission’s report, especially the use of discretion and the idea of a criminal justice system.

Yet, in the case of police, the President’s Commission kept itself anchored in the reform tradition. The report emphasis is response time,

administrative improvements, and police as the

front end of the criminal justice system. It focuses police, as well as other criminal justice

agencies, on case processing—an orientation

that atomizes and obscures complicated neighborhood and community problems.

On balance, system improvement won the day

in the Commission’s report. Relations with the

community had to be improved and better personnel had to be recruited, yet the basic policing

paradigm went largely unchallenged: police

business was to ride around in cars and respond

to calls for service. Police in the 1960s, who

were insular and suspicious of outsiders, especially the liberal academics who staffed the

Commission, nonetheless found their hand had

been strengthened. Police were now part of a

criminal justice “system,” and their business

was clearly defined as arresting and processing
26

offenders. The full impact of the ABF’s survey

became apparent in the late 1980s and early

1990s, when community and problem-oriented

policing would refocus attention on the true

complexity of policing.

Nonetheless, minor themes in the Commission’s

report pointed to the impact of the ABF efforts

in its call for guidelines for controlling police

discretion:

Police departments should develop and enunciate policies that give police personnel specific guidance for the common situations

requiring exercise of police discretion. Policies should cover such matters, among others,

as the issuance of orders to citizens regarding

their movements or activities, the handling of

minor disputes, the safeguarding of the rights

of free speech and free assembly, the selection

and use of investigative methods, and the

decision whether or not to arrest in specific

situations involving specific crimes.3

The truly remarkable outcome of the President’s

Commission can be found in its companion report, Task Force Report: The Police. Chapter 2,

which was authored by Frank Remington and

Herman Goldstein, remains the definitive source

on police policymaking and structuring discretion.4

 The section entitled “The Need to Recognize the Police as an Administrative Agency

with Important Policymaking Responsibility”

clearly is not only out of the “reform box” but

also so far ahead of the field that its full impact

is yet to be felt.5 Remington and Goldstein

wrote:

There are two alternative ways in which

police can respond to the difficult problems

currently confronting them:

(1) The first is to continue, as has been true in

the past, with police making important decisions, but doing so by a process which can

fairly be described as “unarticulated improvisation.” This is a comfortable approach, requiring neither the police nor the community

to face squarely the difficult social issues

which are involved, at least until a crisis—like

the current “social revolution”—necessitates

drastic change.

(2) The second alternative is to recognize

the importance of the administrative policymaking function of police and to take appropriate steps to make this a process which is

systematic, intelligent, articulate, and responsive to external controls appropriate in a

democratic society; a process which anticipates social problems and adapts to meet

them before a crisis situation arises.

Of the two, the latter is not only preferable; it

is essential if major progress in policing is to

be made, particularly in the large, congested

urban areas.6

Included in Remington and Goldstein’s formulation is a diagrammatic representation of the

policymaking process. (See “Formulation and

Execution of Police Policy.”)7

For the most part, outsiders to policing were the

first to pick up on Remington and Goldstein’s

line of thought and advocate the development of

strong guidelines similar to those used by administrative agencies. These advocates included

scholars, reformers, lawyers, a few renegade police chiefs, and others who believed that beyond

the guidance that courts, legislatures, prosecutors, and local officials could provide to shape

officer discretion, police themselves had to develop their own professional guidelines. Guidelines, as distinguished from administrative rules

in the minds of those advocating formal and

public policymaking, would assist police in controlling crime, increase police responsiveness

and accountability, allow for police input into

policymaking and legal deliberations, and, as

Warren LaFave suggests, encourage courts to

respect police professional judgment.8

Convinced that the development of guidelines

was central to improving police performance

and accountability, the Police Foundation—

created by the Ford Foundation in 1970 with a

$30 million endowment—funded two early
27

Formulation and Execution of Police Policy

Decision to review policy

Identification of need for policy as

determined by: court decisions, new

legislation, citizen complaints, analysis

of crime and social problems, and

analysis of existing field practices

Referral by head of police department to planning and research

unit for study in cooperation with

divisions and staff specialists

Referral of findings to staff

for consideration

Consultation by staff with:

chief political executive;

neighborhood advisory committees;

and prosecution, court, corrections,

and juvenile authorities

Formulation of policy by

head of police department

Promulgation of policy—

To community through:

Published policy statements and neighborhood

advisory committee meetings

To personnel through:

Training manual and orders

Execution of policy by field

personnel: controlled through

supervision and inspection

Evaluation of policy based upon:

court decisions, new legislation,

citizen complaints, analysis of

crime and social problems, and

analysis of existing field practices

Adapted from: President’s Commission on Law Enforcement and Administration of Justice, The Challenge of

Crime in a Free Society: A Report by the President’s Commission on Law Enforcement and Administration of

Justice, Washington, DC: U.S. Government Printing Office, 1967: 105.
28

major efforts to develop guidelines. One was a

program in rulemaking at Arizona State University Law School under the direction of then faculty member Gerald Caplan. The second was an

effort in the Boston Police Department (BPD)

under the direction of Sheldon Krantz who, at

that time, directed the Center for Criminal

Justice at Boston University.

Caplan’s Arizona State project helped 10 police

departments develop model policies that would

“channel” police discretion through “carefully

researched and articulated rules—rules formulated in categories meaningful to a policeman,

rather than law textbook groupings not related

to the situations likely to be encountered on the

next tour of duty.”9 Krantz’s efforts in the BPD

were more focused, concentrating initially on

three areas of criminal investigation—search

warrants, motor vehicle searches, and searches

incidental to arrest—and involved the use of task

forces composed of line as well as administrative staff. Later the efforts expanded to include

additional investigative areas as well as drug

enforcement issues.

Herman Goldstein was prescient when he wrote

in 1967:

The overall picture, however, reflects a reluctance on the part of police administrators to

establish policies to fill the existing void. This

reluctance is in sharp contrast to the strong

tradition within police agencies for promulgating a variety of standard operating procedures to govern the internal management of

the police force.10

Academics, scholars, and lawyers might want

police to develop guidelines, but the insularity

of police and their reluctance during the 1950s,

1960s, and much of the 1970s to allow any

outsider to get involved in the business of policing doomed efforts such as the Caplan and

Krantz projects.

Although the development of guidelines was

a promising means of strengthening police

practice, police would have little to do with such

efforts. In retrospect, Caplan remarked: “The

timing was just not right. We could get a few

police staff members to get involved in each

department we worked with, but the resistance

to outsiders in police departments was so strong

that we really couldn’t get much done.”11

With no reports and few products—model rules

were developed but, for the most part, shelved—

the project, like team policing in many cities,

simply faded away. Likewise, although Krantz

found he could generate enthusiasm in task force

members, he could not generate any enthusiasm

for guidelines in either the BPD or other departments. In retrospect, Krantz believes that a focus

on routine police work, rather than the issues

studied, would have been a more profitable approach. Even at that level, however, the field just

was not ready.12

To be sure, a few chiefs of police understood the

need for guidelines and worked to develop them,

but they were far from the norm, especially during the 1960s and 1970s. Working with Caplan,

Chief Jerry Wilson in Washington, D.C., developed guidelines for eyewitness identification

procedures during the late 1960s to ensure police practices that were both effective and legal.13

Likewise, Commissioner Patrick V. Murphy, in

1971, initiated guidelines in New York City to

mold police use of force, especially deadly

force. Two of the most innovative chiefs of this

era were Robert M. Igleburger of Dayton, Ohio,

and Frank Dyson in Dallas, Texas. While Caplan

and Krantz focused on model rules and regulations that could be adopted by individual police

departments, Igleburger and his administrative

assistant Frank A. Schubert, now associate professor of criminal justice at Northeastern University, developed guidelines that were location and

problem specific.14 Funds for this effort were

provided by the Police Foundation in 1972.

Akin to Krantz’s work, line police officers who

had to deal with specific problems were integrated into the decisionmaking process. Going
29

beyond earlier efforts, however, Igleburger and

Schubert included in each task force citizens

who were affected by the problems. For example, during the early 1970s, Dayton experienced friction between students and residents in

a working class neighborhood adjacent to the

University of Dayton. Not atypically, students

who wanted to live off campus sought inexpensive rooms and apartments in the neighborhoods

surrounding the campus. The conflict arose between working parents who wanted the neighborhood to quiet down by 10 p.m. or 10:30 p.m.,

especially on weeknights, and students who, after a day of classes and studying, wanted to engage in other activities until the early morning

hours. The result, of course, was repeated calls

to the Dayton police. Disturbance violations of

one form or another, especially noise violations,

were the most common complaints.

As part of the police/public policymaking

project, Schubert, along with neighborhood

officers, polled residents and students, met repeatedly with both, and learned more about the

neighborhood and its problems. Once the police

understood neighborhood standards about noise

and other issues that could cause conflict between students and other residents, they developed guidelines that police would use to enforce

those standards. The standards and guidelines

were then printed and widely distributed to all

the concerned parties. (See “Dayton, Ohio,

Issues Guidelines Related to Student and

Nonstudent Residents.”)

As Schubert makes clear, issuance of the guidelines was not a once-and-for-all determination.

Each year the process was repeated to update

policies and to ensure that new students, residents, and police understood and endorsed

police policies regarding enforcement of bans

on noise and other forms of disturbance.15

Just as the time was not right for model rulemaking during the 1970s, the time was not right

for public policymaking in Dayton either. When

Igleburger retired as chief of the Dayton Police

Department in 1973, the program faded away.

When I consulted with a blue-ribbon citizen

group commissioned to examine the tragic death

of an innocent citizen that occurred during a

botched special unit operation during the late

1980s, no traces of police/public policymaking

could be found. Reports on the police/public

policymaking project were never published or

disseminated, although Igleburger and Schubert

published one brief article in 1972 on shaping

discretion through police/public partnerships.16

Generally speaking, academics, foundations,

and others lost interest in guidelines as well,

although publication of a few articles about

controlling police discretion continued into the

1980s, mostly in law journals. A few departments developed guidelines, but this was not the

general rule.

The idea of model policies, rules, and regulations was somewhat revived by development of

the accreditation movement in policing during

the 1980s. However, the process had relatively

little impact on how line officers should use or

have used their discretion. Research interest

shifted to experiments in police tactics, largely

as a result of the early work of the Police Foundation in Kansas City, Missouri, Cincinnati,

Ohio, and Newark, New Jersey. “Big” issues,

such as preventive patrol and response time, or

“sexy” issues, such as use of force and domestic

abuse, largely dominated the attention of police

researchers.

During the late 1970s and 1980s, as the Police

Foundation’s financial resources dwindled, the

National Institute of Justice (NIJ) assumed leadership in guiding research, but shaping discretion was not the commanding issue that it had

once been. Saying this should not diminish the

value of much Police Foundation and NIJfunded research: it contributed enormously to

the understanding of police work and reconsideration of the reform strategy. Nonetheless, a

crucial movement in policing—developing

guidelines to shape police discretion—lost its

impetus because the field simply was not yet

ready for it during the 1970s. Police business

was still police business.
30

Dayton, Ohio, Issues Guidelines Related to Student and Nonstudent Residents

The police general order read as follows:

The Department of Police has as one of its

primary responsibilities the development and

maintenance of peaceable relations between citizens. Police officers are expected to act in an appropriate and effective manner so as to maintain

a standard of public order which is generally

acceptable to the lifestyles of both the student

and non-student residents of the area in the

vicinity of the University.

It should be recognized that divergent lifestyles

frequently generate conflict which is not conducive to the well-being of either students or nonstudents, and that compromises must be made

by all concerned. Other communities have attempted to deal with this campus-community

situation by general suppression through use of

police power. The record seems to indicate that

this response has not resolved the problems but,

rather, increased the polarization of the parties.

I believe that we should seek to develop a police

response to the problems which will permit an

evolutionary and improving relationship based

on respect and a concern by all for the mutual

welfare of the community. Such a police posture

can only be justified, however, if the situation

shows improvement.

The following problems were identified by

student and non-student residents meeting with

police personnel as being matters of legitimate

police concern.

Fires. The residents have indicated that they

believe fires should not be permitted in the streets

as they constitute a serious threat to life and

property. Residents expect police crews to act appropriately to prevent the lighting of fires and to

put out existing fires.

Loud Noise After Midnight. The residents have

indicated that it is reasonable to expect that loud

noises should cease after midnight. Both students

and non-students believe this compromise to be

fair and acceptable. I expect police crews to act

so as to protect the rights of persons to peace and

quiet in their residences after midnight.

Traffic Blockages. The residents recognize that

large numbers of students in attendance at parties

may require the temporary use of the streets. It is

important, however, that vehicles be permitted to

pass through these crowds so that residents can

gain access to their property and so emergency

vehicles can pass. Police crews are expected to

ensure vehicles are not being blocked unless barricades have been erected in accordance with our

block party procedures.

It should be emphasized that the burden for complying with the standards discussed in this memo

should be on the residents, both student and nonstudent. The problem is unlikely to be resolved by

police force; however, in the event we need to respond to situations such as those discussed above,

we will act to implement the identified standard

as the situation requires.

We are committed to persuasion as the primary

method of dealing with these problems because it

is constructive, and not destructive as is the confrontational approach. Conflict management personnel are to be called up to assist whenever it is

felt they can be of aid to the crew.

The Second District Sergeants and beat crews

are encouraged to confer with residents, Project

South (telephone number), and the University Student Government so as to make use of their services in dealing with problems in a “non-police”

fashion to the greatest extent possible.

The officers are to feel free to consult with the

Conflict Management Director, their superiors,

or myself if they have any questions about this

policy. It is the responsibility of the Supervisors to

assure all officers have read and understand this

order and respond accordingly.

 Director of Police
31

Notes

1. Wilson, James Q., Varieties of Police Behavior, Cambridge, MA: Harvard University Press,

1968: 278.

2. Kelling, George L., “Toward New Images of

Policing: Herman Goldstein’s Problem-Oriented

Policing,” Law & Social Inquiry 17 (3) (Summer

1992): 539–559; and Kelling, George L., and

Catherine M. Coles, Fixing Broken Windows:

Restoring Order and Reducing Crime in Our

Communities, New York: Free Press, 1996.

3. President’s Commission on Law Enforcement

and Administration of Justice, The Challenge

of Crime in a Free Society: A Report by the

President’s Commission on Law Enforcement

and Administration of Justice, Washington, DC:

U.S. Government Printing Office, 1967: 104;

guidelines were also strongly endorsed by the

report of the American Bar Association’s Committee on the Urban Police Function (American

Bar Association, “The Urban Police Function,”

Approved Draft, Institute of Judicial Administration, New York, 1973) and the report of the

Kerner Commission, the National Advisory

Commission on Civil Disorder created to study

urban rioting (Kerner Commission, Report of the

National Commission on Civil Disorder, New

York: Bantam Books, 1968).

4. Remington, Frank, and Herman Goldstein,

“Law Enforcement Policy: The Police Role,”

Task Force Report: The Police, Washington, DC:

U.S. Government Printing Office, 1967: 13–41.

5. Wilson, Varieties of Police Behavior, 285.

In the final chapter, “Conclusions and Policy

Implications,” which anticipates the problems

inherent in developing police discretionary

guidelines, Wilson writes: “Politics, in the

broad sense of community involvement in

policymaking, will be used to achieve what

administrative rationalization cannot.”

6. Remington and Goldstein, Task Force Report:

The Police, 18.

7. President’s Commission on Law Enforcement

and Administration of Justice, The Challenge of

Crime in a Free Society, 105.

8. See LaFave, Warren, “Police Rule Making and

the Fourth Amendment,” in Discretion in Criminal Justice: The Tension Between Individualization and Uniformity, ed. Lloyd E. Ohlin and

Frank J. Remington, Albany, NY: State University of New York Press, 1993: 211–277; and

Caplan, Gerald M., “The Case for Rule-making

by Law Enforcement Agencies,” Law and Contemporary Problems 36 (4) (1971): 500–514.

9. President’s Commission on Law Enforcement

and Administration of Justice, The Challenge of

Crime in a Free Society, 502.

10. Goldstein, Herman, “Police Policy Formulation: A Proposal for Improving Police Performance,” Michigan Law Review 65 (April 1967):

1123–1146.

11. Personal telephone conversation with Gerald

Caplan, January 1994.

12. Personal interview with Sheldon Krantz,

Washington, DC, July, 13, 1996; there were

other attempts at administrative rulemaking,

including a collaboration between Texas officials

and the International Association of Chiefs of

Police. See Ferris, Saadi, “Administrative Rulemaking: Police Discretion,” Police Chief (June

1974): 70–71.

13. Wilson, Jerry V., and Geoffrey M. Alprin,

“Controlling Police Conduct: Alternatives to the

Exclusionary Rule,” Law and Contemporary

Problems 36 (4) (1971): 488–499.

14. This section paraphrases a discussion in

Kelling and Coles, Fixing Broken Windows, 191–

192.

15. Personal interview with Frank A. Schubert,

Boston, January 24, 1994.

16. Igleburger, Robert M., and Frank A.

Schubert, “Policy Making for the Police,” American Bar Association Journal 58 (March 1972):

307–310.
33

that managers dump problems into officers’ laps,

stick their heads in the sand, and then, when the

inevitable legal challenges arise, say that dealing

with homelessness is a hopeless task—a position

that police managers took earlier with graffiti—

and then return to business as usual. Fortunately,

things did not work out this way. Although it

required a replacement of the transit police leadership to implement the policies and tactics developed by the study group, the outcome was

restoration of order and astonishing drops in

the level of serious crimes, most notably a nearly

75-percent reduction in the number of robberies.2

Beyond the problem-solving aspects of the experiences, however, I returned to the literature on

discretion to review the state of the art of police

department rules and regulations and general

orders. The study group anticipated that advocates for the homeless and civil libertarians

would sue the transit police once order maintenance efforts were initiated, and that selective

enforcement would be a major issue. Moreover,

advocates made it clear that they would challenge

our attempts to control panhandling using First

Amendment free speech as the pivotal issue.

With awareness that the courts would look over

our shoulders, it was absolutely essential that

we deal with how we would shape discretionary

guidelines and why panhandling, not just socalled aggressive panhandling, should be banned

in the subway. Even technical legal issues were

considered because we had to be prepared to

demonstrate a “compelling governmental issue,”

if courts found panhandling to be a protected

form of speech. Justifications had to be developed for police actions in the subway that would

make the typical knee-jerk response—“throw

the bums out” from the right and “criminalizing

the homeless” from the left—untenable to the

general public.

My interest in complexity, discretion, and

policymaking was restimulated by my experiences working with New York City’s Transit Police Department during the late 1980s and early

1990s.1

 Confronted with growing numbers of

homeless people living in the subway system—

a mishmash of interrelated problems if there

ever was one—police managers proposed obviously contrived “cleaning operations” that were

to be “supported” by line officers. Maintenance

personnel with high-power hoses were to go into

the subways where there were concentrations of

homeless people to “clean” the subways. Police,

in support of these cleaning operations, would

eject the homeless. Dean Esserman, then legal

counsel for the transit police and now chief of

the Stamford, Connecticut, Police Department,

dubbed the proposed operation “commando

cleaning.” At my urging, David Gunn, then

President of the New York City Transit Authority, and Robert Kiley, then Chairman of the

Board of the Metropolitan Transportation

Authority, rejected the plan for what it was—

a sham.

Instead, David Gunn created a police study

group, which I advised. It consisted of line officers, supervisors, and managers of the transit

police as well as civilian employees of the

New York City Transit Authority. The study

group, using a variation of Herman Goldstein’s

problem-solving methodology to address the

issue, conducted patron and focus group surveys

that both helped to define the nature of the

subway’s problems and provided public review

of suggested police tactics.

It was quite apparent that line officers desperately wanted administrative guidance and

authority but were skeptical that it would be

forthcoming. Their initial view, put simply, was

Development of Police Guidelines
34

In short, we were making public policy about a

specific set of problems in a particular set of locations that was similar to the process identified

by Remington and Goldstein and implemented

in Dayton. Reflecting back on the process, it

became clear that our efforts to develop and

implement policies to restore order in the subway attempted to meet at least 11 standards.

The policies had to:

● Recognize the complexity of police work.

● Acknowledge that police will use discretion.

● Recognize and confirm how police work is

conducted.

● Advance a set of values that may be applied

to the substantive work issue at hand.

● Put forward existing research, facts, or data

about the substantive issue at hand.

● Undergo development by practicing police

officers and citizens.

● Undergo public promulgation in a manner

clear to officers, the general public, community stakeholders, and the courts.

● Include rules about what officers should not

do.

● Emphasize police adherence to a process

(application of knowledge, skills, and values),

rather than any predictable outcome, because

outcomes of police interventions are often

wildly unpredictable regardless of officers’

skills, intent, and values.

● Establish accountability standards that identify competent and/or excellent performance,

violations of organizational rules, and incompetent or uncaring work, including performance within organizational rules.

● Receive recognition as an ongoing and

continuing process.3

These standards had broader applications and

were presented to line personnel in training sessions and experiments with their development in

several police departments.

Recognizing the Complexity of

Police Work

The complexity of police work has two dimensions: the complexity of the situations or problems confronting police, and the complexity of

police responses to those situations.4 Panhandling is an example of how complex a seemingly

simple act can be. It is the subject of considerable litigation between civil liberties groups and

police departments across the country, a clear

example of external groups using litigation and

the courts to limit police discretion. (Advocacy

groups do so with good reason—police have

used vagrancy, loitering, and panhandling laws

to harass citizens and discriminate against

groups in the past.)

Until recently, “loitering for the purpose of panhandling” laws were the state of the art and had

appropriately replaced antiquated vagrancy and

overly broad loitering laws. Recently, court support has drifted from laws against loitering for

the purpose of panhandling to statutes that ban

aggressive panhandling. These include laws

against touching someone while in the act of

begging, blocking free passage, and begging

near automatic teller machines, to give just three

examples. Many libertarians still object to such

restrictions.5

 This shift toward aggressive panhandling laws, of course, rests on the decision of

some courts to elevate panhandling to the status

of political commentary about economic injustices, and other issues, thereby making the practice a First Amendment free speech issue.

It is unlikely that panhandling can be completely

eliminated from city streets. Because some beggars are no threat to anyone, it seems appropriate

to limit legislation and police action to aggressive panhandling. Yet, in many cities, municipal

officials are so certain that civil liberties groups

will take the city and police to court if they

attempt to enforce local panhandling laws that

they no longer enforce their laws against loitering for the purpose of panhandling.
35

Those who advocate aggressive panhandling

laws (or tolerate them in lieu of completely

decriminalizing all begging behavior) and the

courts that try to steer cities toward specific

forms of panhandling legislation assume that

aggressive panhandling behavior can be clearly

defined in legislation, thus eliminating police

discretion in this matter. This further assumes

that aggressiveness can be defined solely on the

basis of the act itself. This is a tragic misunderstanding of street realities that will result in

endless street hassles for police officers and

departments that understand the social and

economic costs of unchecked panhandling.

It is wrong to give meaning to behavior solely on

the basis of an act itself because the meaning of

behavior is to be found in its context. Identical

behavior can be passive or aggressive, depending

upon its context. At least five contextual elements give meaning to behavior: time, location,

number or aggregation of events, condition of

the victim/observer relative to the perpetrator/actor, and the previous behavior/reputation of the

perpetrator/actor. A person standing at the top of

subway stairs, holding a paper cup, and begging

during the 8 a.m. rush hour is not much of a

threat. At 10 p.m., the same panhandler, behaving in the same manner as observed during the

rush hour, is a genuine threat to a solitary elderly

woman returning home from work. The time and

the location and condition of the woman combine to turn the beggar’s behavior into a threat

that anyone in the woman’s position would feel

and could result in hassles and inconveniences

for the woman as well as her reluctance to ride

the subway.

To the contrary, 20 panhandlers in Harvard

Square in Cambridge, Massachusetts, are little

threat to citizens or, in turn, to commerce.

Harvard Square is so vibrant that it can absorb

enormous levels of deviance without substantial

threat to citizens or commerce. Twenty panhandlers in the central downtown area of

Watertown, Massachusetts, however, would

threaten many citizens—especially the elderly

and infirm—and could wipe out its commerce.

In this situation, the number of panhandlers

interacts with the location to give the behavior

its meaning. (See “Police Must Put Behavior in

Context.”)

The second dimension of complexity is officers’

responses to situations or problems. In the mid1980s, David Bayley and Egon Bittner published two papers that systematically viewed

police work, its skills, and tactical choices.6

Based on research into police handling of domestic disputes and self-initiated traffic stops,

Bayley and Bittner examined the teachable

skills of patrol work. In the second article,

Bayley “presents the results of an attempt to describe as fully as possible the actions of patrol

officers in handling highly problematic situations.”7

 Bayley and Bittner identify the tactical

choices police can make at three stages of encounters with citizens: contact, processing, and

exit. For example, a contact option for an officer

during a traffic stop is to ask the driver whether

he knew why he was stopped; a processing

option is to warn disputants about what actions

police might take if their dispute persists; and

an exit option is to arrest a disputant.

Each tactical choice by the police, each citizen’s

response, counterresponses by each, and changes

in other variables in the context (for instance,

intervention of strangers) create a fluid, everchanging encounter.

A number of generic problems can arise over

the course of an encounter that may take officers

beyond “common sense” or “command presence” as they weigh the context of the situation

and the tactical choices available to them.

Bayley and Bittner’s research arose out of a

desire to link officer behavior with outcomes.

In the realm of policymaking, the goal is to go

from hypothesized good practice—the wisdom

or craft of the field as embodied in good

police officers, case studies, and research—to

prescribed “ways of thinking” about how to

initiate a contact, process it, and close it that
36

are based on an officer’s assessment of the

event, its situational context, and his or her

choices.

Indeed, officers do this implicitly all the time.

The officer who sees a drunk harassing a pregnant woman with a young child at a busy intersection may opt to use force (contact choice) by

grabbing the man by the shoulders, walking him

away, and then admonishing him, rather than

Police Must Put Behavior in Context

Virtually any specific behavior gains meaning by the context in which it occurs. Most police

officers intuitively understand this and make their decisions about whether and how to intervene

on their assessment of an act, or series of acts, within a context. Thus, for example, as part of a

problem-solving exercise dealing with squeegee men, I spent time with a New York City neighborhood foot patrol officer who was perhaps as assertive in dealing with the problem as anyone

in the NYPD. One night, because of some publicity after Mayor Rudolph Giuliani’s election, the

officer’s district commander initiated a crackdown on squeegee men in his district.

I had come to the district to meet with the officer and to interview some squeegee men but discovered they were either in jail or had withdrawn from the streets because the word was out

about the crackdown. The officer asked that we visit a particular intersection, where we came

upon an African-American man, in his 50s or so, with a squeegee and a bucket of water. The

officer called the man by name, and the man walked over to our car. He greeted the officer by

name as well. The officer then advised him to “get off the streets, there’s a crackdown.” The

officer then introduced the man to us; we talked for a short time and then exchanged goodbyes.

I questioned the officer about this exchange because he was known to be enterprising regarding

squeegee men in his neighborhood; here he was warning such a person about a crackdown.

“Joe is no problem,” the officer responded. “He really washes windows. He’s courteous; he asks

people if they want their windows washed, backs off if they give any sign that they don’t, and

doesn’t interfere with traffic. He’s a veteran and can’t get by on his pension. I just don’t want

him to spend a night in jail because the district commander is upset.” For the officer, the context

gave meaning to the event—the location, the reputation of the man, and the man’s behavior

when approaching cars shaped how the officer used his discretion. This is the essence of good

order maintenance and peacekeeping.

Skillful order maintenance activities acknowledge that squeegeeing, like prostitution, panhandling, and drug dealing, will never be eliminated, but good policing can determine the

conditions under which and how such activities can take place and bring them into line with

community standards. Was the officer taught how to use discretion in this fashion while he was

in the academy? Did he turn to police guidelines about issues to be considered when deciding

when and how to intervene in situations? Most likely he learned about discretion on the streets

from colleagues and, if lucky, from supervisors as well as from his own experiences.

simple admonishment, because he fears for the

safety of the woman and child. The condition of

the man (drunk and lurching), the condition of

the woman (in late pregnancy and with another

child), and the time of day and location (on the

curb during a period of heavy traffic) are the

contextual variables that determine the immediate use of force. Moreover, this incident, which

did happen, could be followed through Bayley

and Bittner’s model with the changing nature
37

of the context interacting throughout the processing stage (the impact of comments by the

drunk’s friends) and the final outcome (use of

force and arrest).

Because officers have not been taught to explicate their implicit scanning and diagnostic

process, few of them can describe their handling

of such events beyond saying they relied on

common sense. With some prodding, officers can

quickly move beyond such trivialization of their

work. Ask the officer, “Would you have behaved

differently if the drunk was harassing two power

forwards from the Rutgers basketball team?” and

he probably would reply, “I probably would have

had to protect the drunk from the youths rather

than vice versa.” In other words, it is possible to

change the context of a scenario in ways that

officers will immediately recognize and, in turn,

cause them to alter their responses.

In any policymaking or guideline development

process it is necessary to include, if not begin

with, an explicit statement about the complexity

of both the problem and the range of officers’

responses. How Bayley and Bittner’s model

should be included in a total guideline development process will become clearer in what follows because it is only the first of 11 elements.

The second is the acknowledgment of discretion.

Acknowledging Police Use of Discretion

The preceding discussion provided a context

through which officers can think about how they

deal with situations and problems and that will,

hopefully, lead to development of training materials, ultimately identify the links between tactical choices and outcomes, and allow officers to

talk about their professional practices in a way

that gives due credit to the wisdom, skill, and

values that are implicit and unacknowledged in

police work.

In any policy statement or guideline, departments must explicitly authorize discretion and

selective enforcement in the handling of situations and problems. Such continued restatements are important, despite their redundancy,

because citizens, prosecutors, courts, lawyers,

and legislatures must clearly understand that the

issue is not whether police officers use discretion. The real questions are how officers use

discretion and how their use of it is shaped.

Linking discretion to scanning, diagnosis, and

tactical choices makes it clear that use of discretion represents neither arbitrariness nor the personal inclination of officers. (See “Prescribing

What Officers May Not Do.”)

Prescribing What Officers May Not Do

Discretion is limited. Officers and departments cannot do particular things. Officers may use

discretion in deciding whether and how to intervene in a panhandling incident, but they may

not intervene on the basis of race. Officers may use their discretion to allow youths to stay in a

park after curfew, but they may not authorize public or underage drinking (they may know that

some of it goes on and be less than vigilant about catching it, but they cannot authorize it).

Officers may work with neighborhood groups to control access to a neighborhood, but they

must not discriminate against ethnic groups in the process.

In virtually every policy area, there are clear limits that must be prescribed to police officers,

citizens, and vested interest groups. Including such limits in policy statements can make values

explicit, remind officers that the exercise of judgment and choice is circumscribed, help them

to say “no” to inappropriate demands from citizens or interest groups, and provide wide administrative

authority to discipline unethical and inappropriate use of discretion.
38

Inside police departments, assertions such as

“I have a right to use my discretion” can mask

renegade police claims to do virtually anything,

or nothing, in the name of discretion. As Bayley

and Bittner point out, tactical choices can be

limited regardless of the complexity of the event:

Situations can be ranked along a continuum

from the cut-and-dried to the problematic. For

example, American officers have few doubts

about what to do when a man is found drunk

lying on the ground in the winter. He must be

picked up and taken to a shelter. The choices

are also fairly limited in serious traffic accidents, alleged housebreaking, and assault with

a deadly weapon witnessed by a police officer.

This is not to argue that some choices are not

involved in such cases—officers can turn a

blind eye or overreact—but rather that the appropriate responses are clearly recognized by

everyone involved—patrolman, public, and

command officers. The appropriate action

may not be easy to take, but it is obvious.8

When officers, regardless of their motivations,

fail to do what they should, “discretion” is no

excuse.

Public officials’ assertions that officers rely on

personal inclination in their work can mask the

officials’ ignorance or serve as political ammunition in legislative or court processes. In litigation

challenging police order maintenance efforts,

defense attorneys often will attempt to sway

judges by demeaning police motives and actions

as expressions of the officers’ personal inclinations. Currently, many city attorneys and departments are ill prepared to counter such arguments

because they have not intelligently articulated

their position regarding discretion. For example,

one city recently asked me to help defend its

policies regarding homeless encampments. Because I knew selective enforcement would be

an issue, I asked to see all relevant departmental

general orders, training materials, and rules and

regulations that were used to shape how officers

handled this problem. No such materials existed.

Under such circumstances, it is not the fault of

those challenging the police or the judge in the

matter if the department or the city has not done

its homework.

If discretion is properly linked to complexity,

as suggested above, it will become increasingly

clear that discretion is, or at least ought to be,

shaped by professional police and departmental

knowledge and skill, not personal inclination.

Recognizing and Confirming How Police

Work Is Conducted

The nature of police work can be explicitly detailed in departmental guidelines or policies. It is

important that everyone involved in developing

or using these guidelines either understands or

acknowledges policing realities, which include

the following:

● The majority of police work is conducted by

an officer working alone or with a partner.

● The officer must make decisions outside

the purview of supervisors or a command

system.

● The officer must make decisions based on

internalized knowledge and skill.

These circumstances are not incidental to American policing. In both England and the United

States, police originally were diffused throughout society rather than either barracked or deployed in units for tactical reasons (to increase

their presence) and for control and accountability purposes. Officers operating alone and embedded in the community would be strongly

influenced by citizens and forced to seek their

approval—an essential element in early 19th

century policing given how distrusted police

were in both countries.

There can be exceptions to officers working

alone—special units, group activities, and so

forth—when immediate command or supervision is present, but standard police operations

call for an officer to work alone or with a partner

without overseers (in a literal sense). The full

consequences of diffusing officers throughout
39

communities may have been mitigated by use

of automobiles and radios. Nevertheless, myths

that officers can be supervised or commanded

directly must be undone because they perpetuate

the current misconceptions that police work can

be organized and administered like a factory

process. Such organizational control over officers simply does not exist.

Advancing Values

The term “values” has two meanings in the

context of police discretion: (1) overall values to

be articulated and attained, and (2) underlying

values and morals that shape discretion and limit

tactical choices. The distinction between attaining values and attaining goals is based on police

organizations’ need to maintain vision and perspective. The values to be attained in the New

York City subway system included providing

safe, rapid, comfortable, reliable, and fear-free

transportation. A number of departments and

agencies were responsible for attaining these

values. The police had and shared particular

responsibilities, including graffiti control, protection of passengers and staff, maintenance of

order, and protection of citizen rights. In performing these responsibilities, goals were set:

eliminate graffiti by 1989, limit and regulate

panhandling, reduce robberies, protect schoolchildren during rush hours, and so forth.

When departments articulate the ultimate values

to be attained, officers can focus on loftier goals

than the trivial, messy, and distasteful tasks that

make up much of daily police work. Where such

values are not articulated, it is difficult for officers to maintain the idealism and vision that

many bring with them as young recruits. Perspective on the proper police role in society also

suffers. Values in this sense inspire officers, especially when they are wrestling with nitty-gritty

problems, considering tactical choices, and planning overall strategy. In this light, dealing with

panhandling in New York’s subway system is not

seen as “throwing the scumbags out” but, rather,

as protecting citizens, reducing fear, putting

police in contact with hardened criminals, and

preventing crime—all of which contribute to

quality transportation, especially for the working

classes who cannot afford other options.

The external benefit of getting and keeping police officers focused on the higher values inherent in their work is that doing so communicates

to the public a true vision of the purpose of policing in a democratic society.9

 In controversial

policy areas, putting values forward is not only

important in its own right but also does not concede the moral high ground to policy opponents.

In developing policing policies for New York’s

subway system, we believed that advocates

for the homeless, with their insistence that the

homeless should be allowed to camp in tunnels—as dangerous and unhealthy as they are—

were cynically exploiting the issue to make a

political point. Protection of the constitutional

rights of all citizens, including the needy homeless who lived in the subway system, was a key

value to be articulated. While the homeless enjoyed the same rights as everyone else, they also

had to abide by the rules.10 (It was common practice for transit police to waive the fare for homeless persons who would ask the officers if they

could use the subway to get to a shelter. The

officers knew that this was often a scam, but,

nonetheless, the rules of the subway were honored in the request and civility was maintained.

Moreover, many persons were desperate and

needed free transportation to get to help, and

it was appropriate for officers to assist them.

Under certain conditions police would even

call a van to get groups of persons to help or to

shelters.)

Values in the latter sense refer to the maintenance of moral and constitutional values in

police work. Virtually every police department

now has some statement of departmental values,

which, while undeniably proper, arguably are

of little relevance to day-to-day policing. While

the high value put on human life shapes policies

regarding use of deadly force in every police department, deadly force is “sexy” stuff—shooting

people—and has little to do with routine police

work.
40

Guidelines and policy statements can be at the

core of linking values to police work. Moral and

constitutional issues are rife in police work, and

it is almost inevitable that one will confront

these basic issues in any attempt to solve problems or develop policies. A good example of

linking values to policy in routine matters is

found in the San Diego Police policy statement

regarding undocumented persons that was discussed earlier. In the context of a discussion

about what role the local police department

should play in the enforcement of immigration

laws, the statement “the San Diego Police

Department recognizes and values the diversity

of the community it serves” gains fresh and

specific meaning.11

Likewise, the New York City transit police had

to consider a mayoral edict (i.e., that no one

could be ejected from public facilities if the

temperature dropped to 32 degrees Fahrenheit)

in developing policies regarding when rule

breakers would be ejected from the system.

The value that underpinned this decree was, of

course, the value of human life—that someone

ejected from a public facility could freeze to

death. The question was whether the Metropolitan Transportation Authority and the transit police were going to honor this proclamation (as a

State agency, the transportation authority is not

under the mayor’s direct administrative control,

although the mayor has enormous influence over

its policies and practices). The initial response of

almost everyone in the study group was reflexive: of course, the rule would be honored. To

consider the widest possible range of options in

the effort to restore order, however, members of

the study group ultimately agreed that ejection

of disorderly persons had to be considered in

practically every circumstance, including bad

weather. Given the volatility of the issue, the

study group understood that Chairman Robert

Kiley of the Metropolitan Transportation Authority would make the final decision. We were

obliged to wrestle with the issue and make

recommendations to him.

The discussions about whether people should be

ejected from the subway system during freezing

weather were fraught with emotion. One member vehemently maintained there was no way

that he was going to order someone ejected to

die in the cold. The issue was complicated by

the fact that the majority of the homeless

persons who violated the rules were serious

alcohol and/or drug abusers, mentally ill, or

both. Clearly, this was a vulnerable population in

need of special consideration. At the same time,

people were dying of hypothermia in the subway. Staying in the subway, as some advocates

urged the homeless to do, exposed them to lifethreatening risk. The group’s final recommendations to Kiley were that rule violators were to be

ejected regardless of the weather; that at temperatures below 40 degrees, bus transportation

should be made available for those who wished

to go to a shelter; and that in cold weather police

should be especially scrupulous about taking

into custody any persons who appeared to be

incapable of helping themselves or who were

improperly clothed and refused bus transportation to a shelter.

Value issues need not be so grand as life and

death. What about youths in parks on hot summer nights in densely crowded neighborhoods?

Should they be allowed to stay beyond a 10 p.m.

curfew if they are quiet and don’t drink? What

potential values would be served? What values

would be eroded? What about street vending?

What rights do vendors have or should they

have? Do the current means of obtaining licenses

inadvertently discriminate against particular

groups or persons? Are there ways to control or

manage vending that do not deprive poor persons

of the opportunity to earn money in otherwise

honest ways? How are the rights of vendors balanced against the rights of shopkeepers who are

paying high rent and other forms of overhead?

How should civil initiatives be used? What selfimposed limits should police develop in the use

of civil initiatives as a tactical choice in solving

problems? Does their use at times inappropriately circumvent criminal due process?
41

These are issues that police themselves should

address because, if they do not, it is only a matter of time until others, most likely the courts,

will do so. Even if the courts or other authorities

do address these issues, it would be better if the

police position were presented proactively after

it has been carefully carved out in the real world

and adapted in such a way that routine police

work makes concrete the abstract values that

need to be articulated when the relevance of the

values is not always apparent.

Putting Police Knowledge Forward

Over the past several decades, research and case

studies have enriched the factual and empirical

base from which police operate. Much of this

knowledge is available not only in traditional

forms—academic publication in books and

journals and in research publications of the

National Institute of Justice—but also, more

recently, over the Internet. The Police Executive

Research Forum, for example, currently publishes case studies of problem solving on the

Internet. Such research and case studies are

valuable for at least three reasons. First, they put

forward a model of systematized thinking about

police business. Second, they provide factual

evidence about the impact of particular police

activities. Finally, they provide the intellectual

justification for police practices, especially when

they are challenged legally.

In New York’s subway system, for example, two

bodies of research were of special importance

in developing policies. The research about

homelessness was valuable because it helped

distinguish the subway’s problems, which were

primarily problems of disorder, from the general

problems of homelessness. Moreover, research

about the links between disorder and fear was

relevant to police managers and officers, who

needed to be convinced that order maintenance

was important police business, and also to the

media and general public.

The transit police studying the problem, however, did their own research as well. They

counted the homeless, checked records to determine the criminal histories of rule violators,

surveyed middle level managers about their

perceptions of the problems, talked with persons

violating subway rules, photographed locations

to determine the extent of rule violations,

conducted focus groups with passengers, and

surveyed riders through the Metropolitan

Transportation Authority. Consequently, the

literature reviews and independent research

were presented not only in policy statements but

also in training materials, educational materials

intended for the general public, and media releases. It was also essential in the litigation that

accompanied policy implementation.

Undergoing Development by Practicing

Police Officers and Citizens

I have been involved with practicing police

officers in problem-solving exercises from the

early 1970s in Kansas City (to determine how

increased numbers of police should be used in

the South Patrol District—a problem that gave

rise to the Kansas City Patrol Experiment)

through the 1990s in New York City around the

problem of squeegee men. Some of the exercises

have been quite formal, others less so. The

sincerity with which officers approach such

exercises has been impressive, but, to be sure,

they view such exercises with great skepticism.

Task forces, they have said, are used to undercut

unions, or officers’ comments and observations

will be ignored. Often, officers harbor unspoken

resentment that a civilian—a social worker from

Harvard at that—should be involved in helping

police think about what their work is and how

they should do it. When such posturing is finished, however, officers have worked hard to understand problems, consider solutions, and carry

messages out to their colleagues—an invaluable

asset in attempts to gain officer support of

new efforts. Some task force members remain

cranky—in some departments I have deliberately requested that the most obdurate officers

be placed on a serious task force—but I have

observed those same officers often either join

the study process or allow their “crankiness” to

be managed by the other officers.
42

Regarding “big ticket” issues, such as restoring

order in the subway, it is also worthwhile to

broaden input through targeted departmental surveys. For example, we anticipated that we would

have to develop wide support for order maintenance activities among transit district captains.

To do so, we had to understand their concerns

and seek their input in developing policies.

Meeting with all district commanders proved

to be unworkable. Consequently, a draft policy

was distributed to district captains along with

a questionnaire to ascertain whether the policy

accurately reflected the problem, recommended

appropriate responses, and offered realistic

implementation plans. The data gathered were

then used to shape the evolving plan.

Persons who do the work and understand the

daily issues provide rich experiences, data, and

insight during problem-solving or guidelinedeveloping exercises. Many officers need help

in articulating their points of view. Some ideas

must be validated. More than once, I have heard

an interesting point of view put forward by an

officer who was pounced on by an administrator

who said “we can’t do that.” Yet, it later became

apparent that the idea could be implemented

and, moreover, provided the key to unlocking

the solution to the problem.

The role of citizens in guidelines development is

less clear. Generally, it is a good idea to involve

citizens. What form citizen involvement should

take, and whether all policy issues require or

should have citizen input, also is less clear; police departments are gaining experience in how

to approach this issue. In the New York subways,

citizen input came from civilian Metropolitan

Transportation Authority employees and focus

groups. As a general principle, citizens should

be involved in policymaking, and the burden of

proof always should be on those who wish to

exclude citizens from a role in policymaking,

not on those who wish to include them.

Clearly, depending upon the issue, citizens

should consent to and support police policies.

The notion that police can operate in a democratic society authorized solely by the law went

out with the riots of the 1960s, although police

must relearn this lesson in some communities.

Additionally, we want citizens to cooperate with

police when called upon to do so.

Finally, in many issues police need the active

partnership and collaboration of citizens to

solve problems. In such cases, citizen involvement in policy development seems to be a prerequisite for collaboration. A myriad of issues,

of course, surface when citizens become involved in policymaking. Which citizens? Should

they be representative? Of whom? To what

extent should opponents of policies—say homeless advocates who are opposed to antiaggressive panhandling ordinances—be involved in

policy development? How do police reconcile

competing interest groups in communities?

Such questions aside, citizen involvement can

educate individuals about problems, involve

them in decisionmaking, define the citizen role

in problem solving, gather citizen support for

police action, and help citizens understand

police limitations.

Undergoing Clear and Broad Public

Promulgation

Police policies should be clearly written and

targeted at practicing police officers and the

affected citizens, which should include political

leaders, community stakeholders, and the

media. Guidelines should be communicated to

these target groups in ways that encourage their

discussion and review.

Many people outside policing would be shocked

by the current business-as-usual approach to

general orders and rules and regulations, often

about highly controversial and politically

charged issues, that many police departments

pursue. Frequently drafted by and for lawyers

(staff lawyers of police departments and city

attorneys), they are filled with legal and bureaucratic jargon. Practicing police officers are not

involved in their development and do not review

them before they are promulgated. Important
43

general orders are distributed many times in pay

envelopes (and promptly thrown out as junk

mail). Their reading at role call is often perfunctory, often accompanied by the reader’s sneers or

eye rolling, and delivered in a fashion that discourages discussion or questioning. It is no wonder that in department after department I have

observed officers treat such policies with disdain:

they are written to protect the city and management from liability; they have “someone’s name

on them”—they are written in response to a particular officer’s mistake; they are used to “get”

officers when they make honest, but highly public, mistakes; and so forth.

While our experience in dealing with disorder

in New York City’s subways was a “big ticket”

problem—one that required a shift in the basic

operation of the department—how the policy was

promulgated was instructive. All documents were

either developed by or reviewed by police officers in the study group. As drafts emerged, study

group members were encouraged to share them

with other officers and to solicit feedback about

their relevance and clarity. Once policies had

been developed, in addition to training and video

messages played at roll call and made available

in all districts, a leaflet was developed and distributed to all officers. The leaflet explained the

new policies and answered critical questions

about what was being done, why it was being

done, what moral and constitutional issues were

raised, and what impact the new policies were

expected to have. Officers were encouraged to

carry copies of the leaflet and to distribute them

to citizens who might question police policies.

Externally, promulgation was widespread. Signs

were posted delineating subway rules; op-ed

pieces were published; political leaders, advocacy groups, and the media were consulted with

and briefed; and other agencies that would be affected by subway policies and had been included

in planning were also briefed. In addition, leaflets made to look like desk appearance tickets

(citations) were printed for distribution to rule

violators during the 2-week period prior to

implementation of the new policies. In essence,

they informed rule violators that they would be

subject to ejection, citation, or arrest if they persisted in violating the new rules after a particular

date.

To be sure, this was a “big” problem and enormous resources were spent in developing and

implementing policies. Nonetheless, the principles hold true even for routine matters: they

not only involve citizens and police in developing policies but also put those policies forward

in ways that are clear and forthright.

Emphasizing Police Adherence to

a Process

Our understanding of the links between police

actions and citizen reactions and outcomes is so

extraordinarily primitive that we cannot realistically hold officers accountable for outcomes.

An officer handling a person on the threshold of

committing suicide might apply all the craft of

the police trade and the result could still be a

suicide. Likewise, a unit handling a hostage

situation might negotiate with considerable skill,

yet a hostage might be killed. Even in minor

situations, an officer might gently reprimand an

aggressive panhandler and still wind up with an

ugly incident.

The goal is to train officers to assess situations

accurately and choose responses that are consistent with the state of the art of their occupation.

Moreover, police should articulate both the

complexity of situations and the reasons for their

tactical choices—that is, to end their reliance on

justifying their actions as “common sense” or

“appropriate action.” In effect, good policy statements prescribe not what an officer should do—

this is impossible in the real world; rather, they

prescribe how an officer should think about a

problem and choose among alternative solutions.

Good policy statements should say: “These are

the factors you must consider when you approach a situation. These are the values that

should guide you. These are the choices you

have at your disposal.”
44

Good policy statements should provide the language that officers use to describe their work for

both development of ongoing police knowledge

and supervisory purposes. So little police work

is conducted under the eye of supervisors that

the only way to oversee most routine police

work is for officers to talk about their work with

their superiors. Talking about police work allows

supervisors to mentor officers in problem solving (e.g., “What alternatives did you have at this

moment?”) and, over time and with the assistance of case studies and other research, begin

the process of linking police thinking and tactics

to outcomes. (A note regarding mentoring officers: this approach to supervision does not

assume that sergeants “know best” about how

officers should have handled situations. Sergeants should help officers review their work to

ensure they considered all the proper factors in

their decisionmaking process.)

Establishing Accountability

Good policy guidelines allow supervisors and

administrators to distinguish between officers

who operate within the rules and yet behave in

an uncaring and incompetent fashion, and officers who bend or break the rules and yet behave

in a caring manner. In one example, an officer in

a midwestern city was dispatched to respond to

a call from a two-story flat. A man who lived

alone upstairs had called the police at about

11 p.m. on a winter night to report that two

young girls, ages 7 and 9, who lived downstairs

had been left alone for several days. The responding officer investigated and found the

report to be true. The two girls had been alone

for two nights and did not know when their

mother would return.

The police department had established a clear

policy for dealing with such incidents. The

officer was to contact an oncall social worker

and turn case responsibility over to the social

welfare department. The officer called. The

social worker, after listening to the officer’s account, suggested that because the upstairs neighbor obviously was concerned about the girls’

welfare, as evidenced by his call, the police

officer should ask him to take the girls into his

home for the night. The social worker would

come first thing in the morning to pick up the

girls. The officer refused to do this. To settle the

resulting impasse, the officer bundled the two

girls into his squad car, stopped at a McDonald’s

for food, and took the girls to the police station

where they spent the night. By doing this, the

officer broke departmental policy by not transferring the case to the social welfare department

and departmental rules by transporting the girls

in his squad car.

In reviewing the case with the officer, it was

clear that he put a set of values about children,

strangers, and the protection of children above

departmental policies and rules. (When I first

asked the officer why he acted as he did, he said,

simply, “Well, it was just common sense.”)

Happily, to the officer’s knowledge, everything

turned out satisfactorily. Nobody reviewed the

matter with him, and the children were picked

up by social welfare workers the next morning.

In my conversation with the officer, I played out

two alternative scenarios. In one, the officer’s

car was hit by a drunken driver while he was

transporting the children, injuring them. I asked

the officer what authorized him to use his discretion as he had; in other words, how would he defend himself if charged with violating policy and

breaking rules? The officer knew of no basis in

guidelines, policies, or traditions in the department that he could use to justify his actions.

In fact, he firmly believed that the department

would discipline him if the scenario I had

spelled out had occurred.

In the second scenario, an officer comes to the

scene, observes the same conditions, but follows

the welfare worker’s suggestion. The girls are

molested by the man. The officer believed that

while he would have been disciplined for violating departmental guidelines and rules if he transported the children and his cruiser was hit by a

drunk driver, the fictitious officer who left the

girls with the upstairs neighbor would not have
45

been. Why? The officer who placed the children

with the man had observed the rules and despite

the tragedy could not be held responsible. He,

the real officer, had broken rules and would be

held accountable if the children had been injured. (It is by no means certain that the officer

would have been disciplined by the department.)

Nevertheless, the importance of putting forward

values in policy guidelines becomes apparent.

The officer had strong personal and professional

values about protecting young children from

victimization that he held above specific policies

and rules. One simply does not put young children into the hands of strangers except in the

most dire circumstances, no matter what policy

dictates. The officer who cared enough to think

through the situation and use his discretion was

clearly in need of prior authorization to do this

as well as support in case the children were

accidentally injured. The officer in the scenario,

however, who obeyed the policies and rules, did

so unthinkingly and uncaringly and put the children at serious risk. The message is, of course,

that following the rules ought to be no protection

from charges of incompetence and discipline

when clear guidelines mandate the values that

should undergird police actions.

In another example, Madison, Wisconsin, Police

Officer (now Sergeant) Joe Balles recounts how

he used his discretion and violated a court order

that barred a father from access to his child. The

father, known to Officer Balles, was involved in

a custody dispute with the mother of the child.

The father called Balles directly late one night to

report that the mother was seriously drunk and

unable to tend to the child. Balles tried but was

unable to find suitable care for the infant for the

remainder of the night. Based on his familiarity

with the father, the mother’s condition, and the

complete absence of resources to care for the

infant, Balles left the child with the father for the

rest of the night and made arrangements to pick

up the baby the next morning. Balles knowingly

acted against the court order. As in the first case,

contextual exigencies made the officer’s responses entirely reasonable. Happily, the father

turned the child over to authorities in the morning.

Policy guidelines can ferret out officers who

follow the rules but underperform and avoid

responsibility as well as identify officers who

break rules to protect important values or achieve

departmental goals. As noted above about values,

guidelines can put forward positive expectations

about officer performance and set achievement

standards.

Receiving Recognition as an

Ongoing Process

Policy development is ongoing. It is a repetitive,

never-ending aspect of police work. Just as the

students in Dayton changed every year, requiring

the development of a new contract between police, students, and neighborhood residents, so the

composition of every neighborhood constantly

changes. Changing conditions, laws, traditions,

and standards require continual updating of

police guidelines.

Notes

1. Kelling, George L., and Catherine M. Coles,

Fixing Broken Windows: Restoring Order and

Reducing Crime in Our Communities, New York:

Free Press, 1996, especially Chapter 4, “Taking

Back the Subway: New York City’s Quality of

Life Program”: 108–156.

2. Ibid.

3. This list is a variation of one first presented in

Fixing Broken Windows. The variations from the

first list testify to the evolving nature of my

thinking.

4. Because complexity is the most complicated

element in policymaking, this section will be

considerably longer than any that follow.

5. This issue is discussed in considerable detail,

including legal details, throughout Kelling and

Coles, Fixing Broken Windows.
46

6. Bayley, David H., and Egon Bittner, “Learning the Skills of Policing,” Law and Contemporary Problems 47 (4) (Autumn 1984): 35–59;

and Bayley, David H., “The Tactical Choices of

Patrol Officers,” Journal of Criminal Justice 14

(1986): 329–348.

7. Bayley, David H., “The Tactical Choices of

Patrol Officers,” Journal of Criminal Justice 14

(1986): 329.

8. Bayley, David H., and Egon Bittner, “Learning the Skills of Policing,” Law and Contemporary Problems 47 (4) (1984): 36–37.

9. For a discussion of such values, see Moore,

Mark H., Creating Public Value: Strategic

Management in Government, Cambridge, MA:

Harvard University Press, 1995.

10. A friend described an incident he had seen

recently. He had observed a person approach a

police officer in a subway car to complain about

a disheveled man who literally reeked. The person had asked the officer to eject the disheveled

man. The officer patiently explained that, although he understood the man smelled bad, this

was not a basis for ejecting him from the subway. The disheveled man was obeying the rules

and, therefore, had a right to use the subway.

The officer quietly did something very important: he not only defended the man’s right to be

there but also encouraged the complaining person to be more tolerant.

11. San Diego Police Department, Field Operations, Department Procedure 6.18, December 20,

1987.
47

Conclusion

One of the lessons learned over the past three

decades, a lesson incorporated into community

policing, is that in a democratic society effective

policing can be achieved only with community

support and involvement. Sir Robert Peel understood this when he sent bobbies into the toughest

areas of 19th century London with a mandate to

persuade people to behave. Police demeanor was

such that officers gained the sympathy and support of the population. We still have much to

learn from this, especially since policing teeters

near the edge of militarism in so many locations

as part of the “war” on drugs and drug dealers.

Viewing the police, as the late Frank Remington

and others have done, as an administrative

agency obliged to develop guidelines publicly

that will shape its inevitable use of discretion

offers one more way to develop community support and involvement in policing urban America.

This viewpoint not only will improve the quality

of policing but will also improve public understanding and support of police. But guidelines

development must not be seen as a one-shot

deal—write the manual and send it out. It must

be understood to be an integral, ongoing part of

policing. At its essence, developing guidelines is

the process of creating a community consensus

about our moral and legal basis for urban life.
49

Appendix A

Order Maintenance Training Bulletin 96–1

NEW HAVEN POLICE DIVISION OF TRAINING AND EDUCATION, NEW HAVEN,

CONNECTICUT

I. PURPOSE. The purpose of this training bulletin is to define the order maintenance policies and

procedures of the New Haven Police Department (Department of Police Service), New Haven,

Connecticut.

II. POLICY. It is the policy of the New Haven Police Department to work with neighborhood

residents and others who use public spaces to maintain order legally, humanely, respectfully and

equitably.

Maintaining order is an honorable and historical function of police departments. Although some

critics of police order maintenance activities have labeled such police activities as harassment, maintaining order on streets, in parks, and in other public spaces is no more harassment than is traffic

enforcement. Whether citizens are using the street for transportation, recreation or commerce, it is

expected that they will do so with respect for others’ safety, and within the limits established by the

laws of the State of Connecticut and the ordinances of the City of New Haven.

The purpose of maintaining order is: (a) to prevent crime and reduce citizen fear; (b) to facilitate

public discourse and activities; (c) to create an atmosphere tolerant of diversity; and (d) to improve

and restore the quality of life in neighborhoods. The problems being referred to as order maintenance

problems include, but are not limited to, abandoned cars, prostitution, noise, graffiti, public drinking

and disorderly conduct such as aggressive panhandling.

The New Haven Police Department recognizes that its order maintenance activities are discretionary

at all levels of the department, from chief through all personnel. Discretion, however, does not imply

personal inclination. Discretion is the application of the professional knowledge, values, and skill of

police departments and officers to particular problems and incidents. The starting point of all professionalism for police, however, is the law.

Our order maintenance activities will always operate within the law. Having said this, however, it

must also be asserted that while the legality of our activities is basic, it must be augmented by public

support. Moreover, this support must be constantly renewed. This renewal is an ongoing process and

integral to our relationship with citizens through Management Teams, community organizations,

neighborhood and commercial associations, schools, churches, synagogues and other organizations.

Because order maintenance is, and has been, a central function of police, it is expected that police will

routinely maintain orderly conditions throughout the city and, more specifically, in the geographical

areas for which they are responsible. While specific neighborhoods may develop priorities (for example, put heavy emphasis on the behavior of prostitutes), police will address all order maintenance
50

problems in all neighborhoods. This is no different than dealing with serious crimes: the fact that

burglary may be a neighborhood priority does not mean that officers will ignore armed robbery or

assault.

III. THE LAW (Sources of Authority). Generally, the legal basis for order maintenance is found in

breach of peace, public disturbance, disorderly conduct, obstructing, harassment, intoxication by

alcohol and/or drugs, criminal mischief, public indecency and loitering in or about school grounds.

IV. PHILOSOPHY of ORDER MAINTENANCE PRACTICES. The New Haven Police Department will always use the least forceful means possible to achieve its purposes. While we will not

hesitate to cite or arrest offenders, our approach, at all levels of the organization, will be to attempt to

get citizens to obey laws and ordinances as unintrusively as possible.

The first level of intervention, whether by managers, supervisors, or by police officers, will be to

educate the public about civility, the consequences of incivility, and the laws that oblige citizens to

behave in particular ways. This can be done in neighborhood meetings, in schools, or in interactions

with citizens. Some citizens do not fully understand their obligations, and if those obligations—for

example, regarding a noisy car or public drinking in parks—are patiently explained, they will adhere

to the law.

The second level of intervention will be to remind citizens of their responsibilities if they are disorderly—that is, that they are breaking the law and subject to penalties if they persist. This too can be

done in a variety of ways. It could be done by visiting a problem location and warning people that if

their behavior continues they will be subject to penalties. Similarly, owners of locations that are

chronic problems could be so warned by individual officers.

The final level of intervention will be law enforcement—the use of citation and arrest.

Having said that the least intrusive means of intervention will always be used should not be read to

mean that in every incident police must start with education. Since police deal with incidents that have

histories (for example, with problems), it may well be that in a particular incident the offenders might

have a history of outrageous behavior which warrants forceful action at the outset of the encounter

(for example, warning or citation).

V. CRITERIA for the EXERCISE of POLICE DISCRETION. Managers, supervisors, and officers, as well as Management Teams, will use at least the following five factors to determine the level

of intervention to be used. While articulating them here might seem extraordinarily formal, police

officers traditionally have used these criteria daily as they make decisions on the street. We are simply

making explicit here what has been implicit in the past.

a. Time: Disorder has important chronological aspects. We acknowledge this culturally through

the creation of holidays (the Fourth of July, the Freddy Fixer Parade, Gay Pride Day, St.

Patrick’s Day, for example) and other periods when we are more tolerant of behavior and

entertainment (for example, Friday and Saturday nights, New Year’s Eve.)

b. Location: Different neighborhoods have different thresholds for various kinds of activities.

Certainly, one can be more tolerant of noise levels in downtown New Haven than in residential

areas. Some forms of disorderly behavior are absolutely inappropriate around schools (public
51

urination by adults, for example) and would be the basis not for education or warning, but for

strong legal condemnation.

c. Condition of the Offender: Here we would be concerned about whether a person is intoxicated

or under the influence of drugs, or behaving in a variety of inappropriate or disturbed ways. Illness, and behavior associated with illness, would be another variable affecting police response

(seizures and post-seizure responses, for example). Obviously, we are not talking about matters

of social class, race, homelessness, etc., when we refer to the condition of the offender. The

focus is behavior. Likewise, we would be less concerned about a person who urinated publicly

if the person attempted to find a solitary location and maintain a sense of modesty than someone who flagrantly exposed him or herself in a highly visible location.

d. Condition of the Victim/Witness: Clearly, we would be more concerned about aggressive panhandling, for example, which targeted vulnerable persons—children, the elderly, people with

disabilities—than we would about similar approaches to sturdy youths. Similarly, as a matter of

policy, we would always be more concerned about the impact of forms of disorderly behavior

on children.

e. Numbers, Volume, or Aggregation: One panhandler is one type of problem, ten panhandlers is

another. Similarly, virtually every form of disorder has quite different meanings dependent on

the number and concentration of people committing the act(s).

These factors, and others, will be primary in the determination of police response to disorder whether

on a departmental, substation, or individual officer level. New Haven police officers are expected to

use their discretion wisely and proudly.

VI. PROCEDURES and PROBLEM-SOLVING. The vast majority of order maintenance activities

will be conducted informally by officers who encounter disorderly behavior on the street. Most often

citizens will be educated or warned. Occasionally, especially when education or warning is ignored or

when behavior is unusually outrageous, arrests will be made. The basis of all such law enforcement

activities will be probable cause.

Some activities will be more formal, however, especially when neighborhoods are confronted with

intransigent problems that require the coordinated efforts of neighborhood police, the community,

citizens and, at times, special units. When more formal, coordinated, order maintenance projects are

conducted, it is expected that Management Teams, as well as supervisory personnel, will use a

problem-solving approach. This approach will include:

a. Identification of neighborhood priorities and the ranking of problems within those priorities;

b. Clear explication of the nature of the problem (problems are not always what they seem);

c. Consideration of tactical options—including the roles of citizens, other agencies and institutions

and police (this may vary widely depending upon resources of neighborhoods);

d. The legal and moral implications of each tactical option;

e. The expected results of each option;

f. The selection of an option;

g. The identification of early indicators of success and/or failure;

h. A preliminary implementation of the selected option;
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i. Monitoring for early indicators of success and/or failure;

j. Full implementation or return to “b” (above) if early indicators are negative; and

k. Termination of effort (goals obtained).

When formal problem-solving is conducted, brief written records will be kept by the officer, District

Manager or Management Team.

See Connecticut Law Enforcement Officers’ Field Manual (Red Book) for specifics.

Effective date 1 January 1996.
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Appendix B

San Diego Police Department Policy Statement

ALL PERSONNEL UNDOCUMENTED PERSONS

FIELD OPERATIONS D.P.6.18 12/20/87 3.8

I. BACKGROUND

This Department Procedure is intended to clarify the Police Department’s policy with respect to the

handling of undocumented persons.

The San Diego Police Department recognizes and values the diversity of the community it serves. The

purpose of this policy is to ensure the safety and well being of all persons, regardless of their immigration status. The primary responsibility for the enforcement of Federal immigration laws rests with

the Immigration and Naturalization Service and the U.S. Border Patrol. Although State and local

peace officers have the authority to assist in enforcing immigration laws, it is the policy of the San

Diego Police Department that officers shall not make an effort to look for violations of immigration

laws.

San Diego Police personnel will focus on detecting and apprehending individuals involved in criminal

activity.

II. ADULT UNDOCUMENTED PERSONS

A. San Diego Police officers are responsible for the enforcement of all laws, Federal, State and

local, and the safety and protection of all persons. Therefore, officers have a duty to contact any

person(s) when there is a reasonable suspicion to believe they are involved in criminal activity.

(Refer to SDPD Procedure 4.1.)

B. If upon investigation “probable cause” to arrest exists, unrelated to the person’s immigration

status, officers may arrest for the offense.

1. If the subject is booked in the City or County jail and determined to be illegally in the

United States, a hold for INS/Border Patrol shall be placed on the prisoner.

a. Immigration documents identified as evidence in a criminal investigation will be

impounded per Department Procedure 3.2.

b. See Health and Safety Code section 11369 for notification requirements when the arrest

is drug related and the person is suspected to be undocumented.

C. Officers are authorized to release subject(s) to INS/Border Patrol if there is no “Probable

Cause” to arrest but there is “Reasonable Suspicion” that criminal activity unrelated to immigration status still exists. After investigation determines the detainee(s) is/are in violation of

8 United States Code Section 1304(e) officers are authorized to notify INS/Border Patrol and
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release the detainee(s) at the scene of contact, within a reasonable time. (“Reasonable suspicion”

defined in Department Procedure 4.1.)

1. The duration of the stop or detention prior to the detainee’s release to INS/Border Patrol

shall be in accordance with Department Procedure 4.1, paragraph 4a, which provides as

follows:

A person stopped pursuant to this procedure may be detained at or near the scene of the stop

for a reasonable time. Officers should detain a person only for the length of time necessary

to obtain or verify the person’s presence or conduct, or an account of the offense, or otherwise determine if the person should be arrested or released.

Such factors as remoteness and safety considerations for the person(s) detained may extend

the reasonable time of detention prior to INS/Border Patrol release. However, such detentions should ordinarily be no longer than twenty (20) minutes.

2. Officers are generally prohibited from transporting detained undocumented persons to a

police facility for the sole purpose of releasing them to INS/Border Patrol.

3. Undocumented persons may be transported if they voluntarily consent in order to complete

or further an investigation.

D. After investigation if it is determined the person(s) is/are not involved in criminal activity unrelated to immigration status, the person should be released, regardless of immigration status.

III. EXCEPTIONS

A. Certain criminal situations, because of their inherent danger to citizens of the United States and

undocumented persons as well, require immediate action by San Diego Officers. Officers are

authorized to detain and release undocumented persons to INS/Border Patrol when contacted

under the following conditions:

1. Drop House—a house or building being utilized as a transfer/holding facility for persons

engaged in smuggling undocumented persons.

2. Load Vehicles—vehicles engaged in smuggling undocumented persons.

3. Drug House—house or building being used to facilitate narcotics trafficking.

IV. SITUATIONS WHERE BORDER PATROL INVOLVEMENT IS PROHIBITED

A. Officers are prohibited from releasing undocumented persons to INS/Border Patrol under the

following conditions:

1. They are victims or witnesses of a crime, unless a determination has been made by

investigators to hold them as material witnesses.

2. When contacted during family disturbances.
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3. Generally, during the enforcement of minor traffic offenses (interactions and nonbookable

misdemeanors).

4. When the person(s) are seeking medical treatment.

V. MIGRANT CAMPS

A. The majority of residents living in migrant camps work in the surrounding area and are in this

country legally. Officers are generally prohibited from detaining undocumented persons in this

setting for INS/Border Patrol unless there is probable cause to arrest for a crime not related to

immigration violations. If probable cause to arrest exists, officers will follow the procedures

laid out in this policy.

VI. DOCUMENTATION OF DETENTIONS

A. All undocumented persons who are arrested will be booked or cited and appropriate reports

prepared. When undocumented persons are detained and released to INS/Border Patrol, officers

will prepare a detention report in every case.

1. Detention reports involving undocumented persons must list in detail the reasons for the

detention, including all facts that led to the “reasonable suspicion” that the subject was

involved in criminal activity unrelated to immigration status.

2. In the event officers locate a drop house, load car or drug house containing multiple undocumented persons, they will document the event by preparing an ARJIS–8 on each subject and

an ARJIS–9 detailing the circumstances of detention.

3. The name(s) and identification number(s) of the agent(s) who take custody of the detainees

will be included in the appropriate (ARJIS–8/ARJIS–9) report(s).

VII. ASSISTANCE TO LAW ENFORCEMENT AGENCIES

A. Officers are directed to provide necessary assistance to all law enforcement agencies including

the United States Border Patrol when requested to do so.

B. An emergency statute, California Government Code Section 55069.75, taking affect on October

4, 1993, was enacted to guarantee “continued federal support for local enforcement activities.”

It provides as follows:

“. . . no local law shall prohibit a peace officer or custodial officer from identifying and reporting to the United States Immigration and Naturalization Service any person, pursuant to federal

law or regulation, to whom both of the following apply:

(a) The person was arrested and booked, based upon the arresting officer’s probable cause to

believe that the person arrested had committed a felony.
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(b) After the arrest and booking in subdivision (a), the officer reasonably suspects that the

person arrested has violated the civil provisions of the Federal immigration laws.”

VIII. UNDOCUMENTED JUVENILES

A. 300 W&I Dependent Children

1. Under 13 years of age

Children in this category will be transported to Hillcrest Receiving Home if a parent or

guardian cannot be contacted. Hillcrest will determine the status and disposition of the

child.

2. Thirteen years of age or older

If the juvenile’s parent or guardian can be located, the juvenile will be released to them

regardless of the family’s immigration status.

3. If the juvenile’s parent or guardian cannot be contacted, the juvenile will be released to

Border Patrol. Transportation to an INS/U.S. Border Patrol facility is authorized for this

purpose.

4. An ARJIS–9 report will be submitted detailing the circumstances of the detention and the

disposition of the juvenile.

B. 601 W&I Status Offenses (i.e., curfew, truants and runaways)

1. Under 13 years of age

If the parents reside in a foreign country, the juvenile will be transported to Hillcrest

Receiving Home.

2. Thirteen years of age or older

It is incumbent upon the Police Department to return juveniles without parental supervision

to their parents, guardians or school officials. If the parents or guardians are in the United

States and can be contacted, the juvenile will be released to them.

If the juvenile’s parent or guardian cannot be contacted, the juvenile will be released to

Border Patrol. Officers are authorized to transport the juvenile when Border Patrol is unable

to respond or there would be an excessive time delay.

3. A juvenile contact report (ARJIS–8) will be completed detailing the circumstances of the

detention.
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C. 602 W&I Minor Offenses

1. Under 13 years of age

If the parent or guardian cannot be contacted, a court order is required before Juvenile Hall

will accept them. In these cases, personnel at Juvenile Hall will be responsible for obtaining

the court order. Officers will stand by until a disposition is reached by Juvenile Hall.

In cases where a court order is not issued, the arresting officer should contact the Division’s

Juvenile Detective (day or night). The Juvenile Detective, with the assistance of the Juvenile

District Attorney, will coordinate the placement of the juvenile in Juvenile Hall or Hillcrest

Receiving Home.

2. Thirteen years of age or older

If a juvenile is arrested and the parents or guardian cannot be contacted, the juvenile will be

placed in Juvenile Hall.

3. A Juvenile Contact Report (ARJIS–8) will be completed detailing the circumstances of the

arrest.

D. 602 W&I Serious Offenses

1. Juveniles arrested for serious and/or violent crimes shall be placed in Juvenile Hall.

2. Officers shall photograph and fingerprint the juvenile taken into custody. The photograph

and fingerprints should be attached to the investigator’s copy of the juvenile contact report.

3. All arrests of undocumented juveniles shall be documented on a juvenile contact report

(ARJIS–8).
For more information on the National Institute of Justice, please contact:

National Criminal Justice Reference Service

P.O. Box 6000

Rockville, MD 20849–6000

800–851–3420

e-mail: askncjrs@ncjrs.org

To access the World Wide Web site, go to

http://www.ncjrs.org

If you have any questions, call or e-mail NCJRS.
About the National Institute of Justice

The National Institute of Justice (NIJ), a component of the Office of Justice Programs, is the research agency of

the U.S. Department of Justice. Created by the Omnibus Crime Control and Safe Streets Act of 1968, as amended,

NIJ is authorized to support research, evaluation, and demonstration programs, development of technology, and

both national and international information dissemination. Specific mandates of the Act direct NIJ to:

● Sponsor special projects, and research and development programs, that will improve and strengthen the

criminal justice system and reduce or prevent crime.

● Conduct national demonstration projects that employ innovative or promising approaches for improving

criminal justice.

● Develop new technologies to fight crime and improve criminal justice.

● Evaluate the effectiveness of criminal justice programs and identify programs that promise to be successful if

continued or repeated.

● Recommend actions that can be taken by Federal, State, and local governments as well as by private organizations

to improve criminal justice.

● Carry out research on criminal behavior.

● Develop new methods of crime prevention and reduction of crime and delinquency.

In recent years, NIJ has greatly expanded its initiatives, the result of the Violent Crime Control and Law Enforcement

Act of 1994 (the Crime Act), partnerships with other Federal agencies and private foundations, advances in

technology, and a new international focus. Some examples of these new initiatives:

● New research and evaluation are exploring key issues in community policing, violence against women, sentencing

reforms, and specialized courts such as drug courts.

● Dual-use technologies are being developed to support national defense and local law enforcement needs.

● The causes, treatment, and prevention of violence against women and violence within the family are being

investigated in cooperation with several agencies of the U.S. Department of Health and Human Services.

● NIJ’s links with the international community are being strengthened through membership in the United Nations

network of criminological institutes; participation in developing the U.N. Criminal Justice Information Network;

initiation of UNOJUST (U.N. Online Justice Clearinghouse), which electronically links the institutes to the

U.N. network; and establishment of an NIJ International Center.

● The NIJ-administered criminal justice information clearinghouse, the world’s largest, has improved its

online capability.

● The Institute’s Drug Use Forecasting (DUF) program has been expanded and enhanced. Renamed ADAM

(Arrestee Drug Abuse Monitoring), the program will increase the number of drug-testing sites, and its role

as a “platform” for studying drug-related crime will grow.

● NIJ’s new Crime Mapping Research Center will provide training in computer mapping technology, collect and

archive geocoded crime data, and develop analytic software.

● The Institute’s program of intramural research has been expanded and enhanced.

The Institute Director, who is appointed by the President and confirmed by the Senate, establishes the Institute’s

objectives, guided by the priorities of the Office of Justice Programs, the Department of Justice, and the needs of

the criminal justice field. The Institute actively solicits the views of criminal justice professionals and researchers

in the continuing search for answers that inform public policymaking in crime and justice.